Wage and Hour Division (WHD)
Section 64c01: Patient Worker
- A major factor in determining if an employment relationship exists between a patient and a hospital (or other residential care facility) is whether the work performed is of any consequential economic benefit to the institution. The circumstances resulting in the individual's confinement, whether voluntary or pursuant to a civil court order, are immaterial to the patient worker's employment status.
- Generally, work is considered to be of consequential economic benefit if it is the type that workers who do not have disabilities normally perform, in whole or part, in the institution or elsewhere. This is true even though the work has therapeutic value or the patient's performance level is substandard.
- It does not matter whether the patient worker resides on the premises of the hospital/institution or is receiving treatment on an outpatient basis. But the worker must be receiving treatment from the facility to qualify as a patient worker.
- Examples of work frequently done by patients that meet the consequential economic benefit test include general building maintenance, landscaping, office work, and janitorial and cleaning work (except for personal cleaning chores such as maintaining one's own quarters) (see Regulations 29 CFR Parts 525.3(g) and 525.4, and FOH 10b34).
- If a patient is undergoing evaluation or training, WH will not consider the patient to be an employee during his or her first three months in work activities provided the following two criteria are met:
- The patient spends no more than one hour a day and no more than five hours a week in the work activities (the Child Labor and Special Employment Team, NO/OEP shall be consulted for possible individual exceptions to this rule); and
- The patient is provided competent instruction and supervision throughout the three-month period.
- An employment relationship does not exist when the patient volunteers to perform services that the institution would not pay for if performed by someone other than the patient. Examples of such activities include wheeling another patient around in a wheelchair or planting and tending a vegetable garden when the produce belongs to the patient.
- When an employment relationship is found to exist between the hospital or other institution and the patient, all the requirements of Regulations, 29 CFR Part 525 (proper certification by the employer, documentation that the patient has a disability that impairs his or her performance of the work in question, payment of the commensurate wage, etc.) must be met before the worker may be paid an SMW.