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elaws - employment laws assistance for workers and small businesses - FLSA Section 14(c) Advisor

Patient Workers

A patient worker is an individual with a disability who receives treatment at a hospital or residential care facility and is employed by that same hospital or residential care facility. The treatment may be received on an inpatient or outpatient basis. With proper certification, the hospital or facility may pay a patient worker less than the minimum wage.

Whether or not an employment relationship exists between a patient and a hospital or other residential care facility depends in large part on whether the work performed is of any consequential economic benefit to the institution.

Generally, work is considered of consequential economic benefit if it is the type of work that workers who do not have disabilities normally perform, in whole or part, in the institution or elsewhere. Examples of work frequently done by patients that meet the consequential economic benefit test include general building maintenance, landscaping, office work, and janitorial and housekeeping work (except for personal housekeeping chores such as maintaining one’s own living quarters).

Factors that are immaterial to the existence of an employment relationship include the cause of the individual's confinement (if any); whether the confinement was voluntary; the fact that his or her performance level may be substandard; and the fact that the work may have therapeutic value for the patient.

A patient undergoing evaluation or training is not considered to be an employee during the first three months spent in work activities, provided he or she spends no more than one hour a day and no more than five hours a week in work activities. The patient must also be provided competent instruction and supervision throughout the period. Note that different rules apply to patient workers who are enrolled in substance abuse recovery programs.

No employment relationship exists when the patient volunteers to perform services that the institution would not pay for if performed by someone other than the patient, such as wheeling another patient around in a wheelchair or planting and tending a vegetable garden when the produce belongs to the patient.

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FLSA Section 14(c) Advisor | Wage and Hour Division