BY PAUL MCGINN BL
REGULATORY MATTERS
                                   Time spent on-call at hospital counts toward 48-hour week

The time that an ophthalmology resident or any other physician spends on-call at a hospital now counts toward the European Union's 48-hour work week limit, according to major new decision from the European Court of Justice.

Although the decision will prove a social boon to residents and specialists, it could prove an economic nightmare for health authorities throughout the European Union who will have to spend billions of euro to hire tens of thousands of physicians to fill the on-call gaps. The decision, in a case called Landeshauptstadt Kiel versus Norbert Jaeger, arose after a resident surgeon, Norbert Jaeger MD, sued the city administrative body that runs the hospital where he worked in Kiel , Germany . In his lawsuit, Dr. Jaeger accused the hospital of acting contrary to European Directive on the Organisation of Working Time. That directive prohibits employers from compelling employees to work more than an average of 48 hours per week.

In his lawsuit, Dr. Jaeger complained that the hospital was acting contrary to the Working Time Directive because it refused to count time spent on-call at the hospital toward the 48-hour limit. Dr. Jaeger argued that when he was on-site at the hospital and available for immediate work he was "working." As such, all time spent on-call at the hospital should be counted toward the 48-hour week, he contended. Dr. Jaeger also argued that German law wrongfully allowed the hospital to violate the directive by counting time spent on-call as "rest" time. Under the Directive, every employee should receive at least 11 hours of rest time between working shifts. According to Dr. Jaeger, he spent average of 29 hours per week on call at the hospital in addition to his usual work-week of 38.5 hours. During his on-call periods, Dr. Jaeger was assigned to a room with two other residents. There was even a bed for him to sleep in. For his time spent on call, Dr. Jaeger was compensated with time off and extra pay.

Dr. Jaeger also alleged that he often was required to return to his regular daytime duties without being able to avail of his 11-hour rest period. According to the hospital authorities, the 48-hour work week did not apply to on-call periods because Dr. Jaeger was not working "continuously" throughout the on-call period. In fact, Dr. Jaeger could sleep throughout his entire on-call period if his services were not needed, the authorities added. The hospital authorities also argued that on-call periods should count toward rest time if Dr. Jaeger did not have to see patients during that time. When Dr. Jaeger's case reached the German Higher Labour Court in Schleswig-Holstein, the Labour Court referred four questions to the European Court of Justice about how to interpret the Working Time Directive:

1 Does time spent on-call by an employee in a hospital constitute working time within the meaning of the directive even where the employee is permitted to sleep at times when he is not required to work?

2 Is it a breach of the directive if a national law classifies time spent on call as a rest period unless work is actually carried out, when the employee stays in a room provided in a hospital and works as and when required to do so?

3 Is it a breach of the directive if a national law permits the reduction in the daily rest period of 11 hours in hospitals and other medical establishments where the amount of time actually worked during time spent on-call or stand-by is compensated for at other times?

4 Is it a breach of the Directive if a national law permits employers and unions to agree to reduce the 11-hour minimum rest period where employees are compensated during subsequent rest periods?

The European Court of Justice considered questions 1 and 2 together, ruling that any time spent on-call and on-site by physicians qualifies as "working" time and that the German law was illegal. "They [doctors] are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need," the court wrote. "Those obligations, which make it impossible for the doctors concerned to choose the place where they stay during waiting periods, must be regarded as coming within the ambit of the performance of their duties," the court added.

"That conclusion is not altered by the mere fact that the employer makes available to the doctor a rest room in which he can stay for as long as his professional services are not required." The Court of Justice also considered questions 3 and 4 together, ruling that no European Union country had the right to count time on-call toward the 11-hour minimum rest period because time on-call was "working" time. Although the 11-hour minimum rest period could be reduced if employers and unions agreed to it, every employee had a right to an 11-hour minimum rest period immediately following working time, the Court of Justice added."During such [rest] periods, the worker is not subject to any obligation vis à vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety and health," the court wrote. "Such rest periods must therefore follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work."

Contacts:

For a copy of the judgement and opinion of the advocate general in Dr. Jaeger's case, go to: http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=c-151%2F02&datefs=&datefe=&nomusuel=&domaine=.

Time spent on standby at home not working hours

Although the European Court of Justice ruled that "working" time includes time spent at a hospital on-call, the court ruled that time spent by a physician on stand-by at home does not count as working time.

"In contrast to a doctor on stand-by, where the doctor is required to be permanently accessible but not present in the health centre, a doctor who is required to keep himself available to his employer at the place determined by him [the employer] for the whole duration of periods of on-call duty is subject to appreciably greater constraints since he has to remain apart from his family and social environment and has less freedom to manage the time during which his professional services are not required," the court wrote. "Under those conditions, an employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity."

Ruling may prove an economic nightmare for EU health services

According to five European Union countries represented at Dr. Jaeger's case, the decision by the Court of Justice to include on-call time at a hospital toward a physician's 48-hour work week limit will cost billions of euro to implement.

In their submissions to the European Court of Justice, lawyers from Germany, the United Kingdom, the Netherlands, Denmark, and France argued that if time spent by a physician on-call at a hospital counts toward the 48-hour work week limit, their health services will be compelled to employ thousands of more residents to do on-call work.

For example, lawyers for the German government told the Court of Justice that

including on-call time within the 48-hour work week would compel German hospitals to hire 15, 000 to 27,000 more residents. The German lawyers added that even if it could pay for the increased number of residents there were only 7,000 unemployed doctors in Germany .

In its ruling, the court also rejected the arguments by the hospital authorities and five governments that the new interpretation of on-call time as working time would cost them huge expense and time to implement.

"That interpretation cannot be called into question by the objections based on economic and organisational consequences," the court wrote.

The European Court rejected the country's arguments largely on the opinion of the court's advocate general. According to the opinion, "improvement of workers' safety, hygiene, and health at work is an objective which should not be subordinated to purely economic considerations."

"Second, the German labour market is not restricted in such a way that it may only rely on German doctors, since it is open to qualified doctors from other Member States who wish to practise in Germany," the advocate general added.

So what is the European Court of Justice?

The European Court of Justice serves as the highest court for the 15 nations of the European Union.

The purpose of the court is to ensure that European Union law is interpreted in the same way in every country. In fulfilling that role, the court hears cases brought by individuals – such as Dr. Jaeger – and cases brought by EU countries, the EU itself, or companies that do business in the EU.

The Court of Justice is composed of 15 judges, each of whom is appointed by a member EU state. The judges may sit together all at one time in plenary session – as in the Jaeger case – or they may sit in chambers of three or five judges. The court sits in plenary session at the request of an EU country, the EU itself, or if the case is particularly important or complex.

In some cases, such as in Dr. Jaeger's case, national courts can seek a preliminary ruling from the Court of Justice on relevant questions before their own court. Once the Court answers the national court's questions, the national court then has a duty to implement the decision of the Court of Justice and rule accordingly.