Scheduling flexibility is one factor among many and carries almost no weight on its own — plenty of W-2 employees set their own hours. Whether your techs are contractors depends on which test your state uses (there are several, and they reach different answers), on how much control you actually exercise, and on facts most operators have never been asked about. Mobile IV is a genuinely hard case, and the honest guidance is: look up your own state's rules, and get counsel before you staff. This guide explains what the tests look at and how to check.
The shorthand that isn't the test
"They pick their own shifts, so they're a contractor." It's the single most repeated line in this industry, and it does almost no work.
Consider the per-diem nurse. She picks up shifts when she feels like it, turns down the ones she doesn't want, and may go a month without working. She is a W-2 employee. Hospitals have run per-diem pools this way for decades. Flexible scheduling and employment are entirely compatible — they always have been. (Hold onto that word. We'll come back to it, because per diem is very likely the arrangement you're actually trying to describe.)
The useful way to hold it:
- Hours tell you when someone works.
- Classification tells you whether they are a business.
Those are different questions. Answering the first one tells you almost nothing about the second.
There isn't one test — there are several, and your state picks
This is the part that surprises people. Worker classification isn't a single national standard. Different states use different frameworks, and the same worker can come out differently depending on where they're standing.
The common law test (IRS-style)
The framework the IRS uses, and the one many states follow. It weighs the whole relationship across three areas: behavioral control (who decides how the work gets done), financial control (who sets prices, supplies equipment, bears profit and loss), and the relationship itself (permanence, exclusivity, whether the work is core to the business). No single factor decides it. The IRS publishes its own plain-English breakdown of independent contractor versus employee.
The ABC test
A much stricter framework used by a substantial number of states. It presumes the worker is an employee, and the company must satisfy all three prongs to rebut that: (A) the worker is free from the company's control, (B) the work is outside the usual course of the company's business, and (C) the worker is engaged in an independently established trade or business. There's no partial credit — miss one prong and the worker is an employee. A useful plain-English explainer, including which states use which version, comes from employment counsel at Pond Lehocky's breakdown of the ABC test.
Modified ABC
Several states use a loosened version requiring only some of the prongs. It sits between the other two in strictness.
1. Published state lists disagree with each other. Compare two articles on which states use the ABC test and you will find genuine discrepancies. Do not trust a table you found on a blog — including a table you might find on ours, which is why we haven't published one.
2. One state can use different tests for different purposes. A state may apply one framework for unemployment insurance, another for workers' compensation, another for wage-and-hour claims, and defer to the IRS for tax. "What's my state's test?" is often really four questions.
3. Federal law is in motion right now. The U.S. Department of Labor is in active rulemaking on the federal independent-contractor standard. Anything written today about the federal test carries an asterisk — check the current rule rather than assuming.
The Lowe's analogy — and exactly where it breaks
Operators reach for this comparison a lot, and it's a good instinct, because it isolates the thing that actually matters.
Think about the contractor who installs a dishwasher for Lowe's. He's a 1099. But look at why that works:
- He runs his own business — his own company, his own crew, his own truck, his own tools
- He holds his own license, and the method he follows comes from the state plumbing code, not from Lowe's
- He installs for Lowe's, and Home Depot, and private clients
- Lowe's controls the result (install to code, be there Tuesday) — not the method
- And installation isn't Lowe's core business. Lowe's sells things.
Now hold your IV tech up against that. Could they be that person? Genuinely, yes — sometimes. An experienced independent nurse with her own business, her own supervising physician relationship, her own supply access, her own malpractice policy, working for three different IV companies and taking her own private clients — that's a real independent contractor. That person exists.
Here's the part worth sitting with: the same worker can be a contractor at one company and an employee at another — because the analogy doesn't turn on who they are, it turns on how you treat them.
The Lowe's model works precisely because the installer serves other clients. Lowe's expects it. Lowe's would find it strange if he didn't.
So if you tell your tech "you can't work for another IV company" — you have just cut the load-bearing beam out of the analogy. Exclusivity is the antithesis of independent contracting. An independent business, by definition, has a client portfolio. A worker who serves exactly one company and is forbidden from serving others is not running a business; they are working a job.
Where mobile IV gets genuinely hard
Compliant medicine requires control
This is the uncomfortable structural fact. You must dictate protocols. You must require the Good Faith Exam. You must control charting. Your medical director's standing orders govern the treatment. None of that is optional — it's what makes you a compliant operator.
But "who controls the method" is exactly what the classification tests ask about. The tighter your compliance, the more control you exercise, and the more your "contractors" start to look like employees. A sloppier operator who let techs freelance might paradoxically have a stronger contractor argument. That's a perverse fact about this industry, and it's real.
Some states have noticed. Arizona, for one, addresses it head-on — see the worked example below. Most states have no such carve-out.
The supplies question nobody asks
Here's a question that cuts deeper than any factor list: where does your tech get their IV supplies?
Prescription-legend products require a prescriber's authority to purchase. A tech without their own medical director generally cannot buy them. Which means their ability to do this work at all exists because of your clinical infrastructure.
Strip your company away, and what does that tech have? No medical director. No supply access. No protocols. No patients. No payment rail. They aren't an independent business that happens to serve you — they're a function of you.
Even a "you may buy from any of these three approved vendors" arrangement doesn't change the analysis much, because those vendors are still selling under your prescriber's authority. It's the same dependence with more steps.
Could this person legally do this work at all if your company disappeared tomorrow?
If they'd still have a supervising physician, supply access, insurance, and clients — they're a business, and a contractor relationship is plausible. If they'd have nothing — they aren't a contractor, no matter what the paperwork says or how flexible their shifts are.
The ABC test's prong B — genuinely contested for mobile
If your state uses the ABC test, prong B — the work must be outside the usual course of the hiring entity's business — looks fatal for mobile IV at first glance. An IV tech administering IVs for an IV company is doing the company's core work. Prong B fails. Employee. Done.
That's the reading in the strictest states. But it may not be the reading everywhere, and this is where you need to be careful.
The strict "outside the usual course of business" standard is most closely associated with California and Massachusetts. In some other ABC-test states, prong B has reportedly been read to allow satisfaction where the work is performed outside the company's usual place of business — which is a materially different question.
And a mobile IV tech works at the patient's home, not at your office. Under that alternative reading, the very thing that makes you mobile might be the thing that clears the prong.
We are not going to tell you which reading applies in your state, because it depends on your state, the agency, and the context — and because sources genuinely differ. What we will tell you is that anyone who states this flatly, in either direction, is more confident than the law is.
Arizona: a worked example (and why it doesn't travel)
Arizona is worth walking through because it shows how much a single state's statute can change the picture — and how little that helps you if you operate elsewhere.
Arizona uses a right-to-control test, not an ABC test. It also offers a Declaration of Independent Business Status (DIBS) under A.R.S. § 23-1601: if a contractor signs one and the parties actually behave consistently with it, it creates a rebuttable presumption of independent contractor status under Arizona law.
Read the statute yourself — the conditions list is the most instructive thing on this page. The contractor must acknowledge at least six items, including that they are not restricted from working for others, that the company expects them to serve other parties, that they are not economically dependent on the company, and that they determine their own days and hours. Notice that "sets their own hours" is one item on a list of at least six.
And then there's the provision that speaks directly to the medicine problem: Arizona's companion statute provides that supervision or control exercised to comply with a statute, rule, code, licensing requirement, or professional or ethical rule cannot be counted as evidence of an employment relationship. In other words, in Arizona, the control you exercise because medicine requires it — the GFE, the protocols, the charting — doesn't count against you.
It only binds Arizona state law. A DIBS has no effect on the IRS, the Department of Labor, or the NLRB — and the federal tests contain no such regulatory carve-out. You can be a contractor in Arizona's eyes and an employee in the IRS's.
A signed declaration is worthless if you don't live by it. The presumption is rebuttable, and it requires the company to act substantially consistent with the declaration. Signing paper while running an employee relationship gets you nothing.
The pattern worth examining honestly
Here's an arrangement common enough in this industry to be worth testing against the factors. A company classifies its techs as 1099 contractors. Those techs:
Score it yourself
| ✓ | Pick their own shifts — contractor-flavored |
| ✕ | Must buy their supplies from the company — employee-flavored |
| ✕ | Work under the company's protocols and charting requirements — though in some states this is carved out |
| ✕ | Wear the company shirt — employee-flavored |
| ✕ | Run every payment through the company's card reader, at the company's prices — no profit or loss of their own |
| ✕ | Are not permitted to work for another IV company — fatal to the Lowe's analogy |
| ✕ | Could be let go for treating a family friend independently — i.e. they are not an independent business |
One contractor-flavored fact. Six pointing the other way — and the last two are the loudest. You can be fired for doing independent work is not something you can say about an independent business. It's the sentence that answers the question by itself.
We're not telling you this arrangement is illegal — that determination belongs to the IRS, your state labor agency, or a court, and it turns on facts we can't see. We're telling you that a lot of operators believe they've settled this question by writing "1099" on a contract and letting people choose shifts, and they haven't.
Why this belongs in a compliance conversation, not just a bookkeeping one
The reason to care isn't the paperwork. It's what happens on a bad day.
True independent contractors are generally exempt from workers' compensation coverage. So an operator running a 1099 model typically doesn't carry it. Now suppose a tech is hurt on the job — a needle stick, a car accident driving to a call, a fall carrying equipment into a home — and files a claim.
The state now examines the classification. If the worker is found to have been an employee, the company was required to carry workers' comp and didn't. That means the medical bills and lost wages land directly on the business. It typically also means losing the protection workers' comp normally provides the employer: the exclusive-remedy bargain (guaranteed benefits in exchange for no lawsuit) generally doesn't shield an employer who failed to carry required coverage. And general liability policies typically exclude employee injuries — that's precisely what comp is for — so the policy you do have may simply not respond.
One injury, and the classification question stops being theoretical.
The constructive answer nobody mentions: per diem
Here's what makes this frustrating: healthcare already solved this, decades ago, and the industry seems to have forgotten.
A per-diem employee is a W-2 worker with no guaranteed hours who works as available. Hospitals have run per-diem nursing pools forever — it's a completely ordinary, well-understood category.
Translate it to mobile IV and it fits almost too neatly. There often aren't "shifts" in this business at all — there are calls. A per-diem tech marks themselves available, picks up the calls they want to run, passes on the ones they don't, and goes home. That is exactly the arrangement most operators are already trying to describe when they reach for the word "contractor."
Look at what per diem actually gives you:
- Techs pick up the calls they want — mark on-shift, take what works for them, pass on the rest ✓
- No guaranteed hours — you have them when there's work, and not when there isn't ✓
- Full control over protocols, charting, and quality — which compliance requires of you anyway ✓
- Correct classification — and insurance that actually responds when someone gets hurt ✓
The flexibility operators think they're buying with a 1099 is available inside a W-2 per-diem model. They're just paying for it with the wrong instrument.
And here's what most operators assume incorrectly: going W-2 does not automatically mean providing benefits. Most benefit mandates key off company size or full-time status, and a small per-diem team clears neither bar.
What you actually owe a per-diem employee
Workers' compensation
The big one, and the whole reason this matters. Nearly every state requires it once you have employees. This is the coverage that responds when a tech is hurt on a call — and the coverage a misclassified 1099 model leaves you without.
Payroll taxes and withholding
The employer's share of Social Security and Medicare, plus federal and state unemployment tax. You withhold income tax and issue a W-2 instead of a 1099.
Minimum wage and overtime
Hours worked are hours worked. Per-diem status doesn't exempt anyone from overtime if they cross 40 hours in a week and aren't otherwise exempt.
State-mandated paid sick time (where it applies)
A number of states require employees — including part-time and per-diem — to accrue paid sick time based on hours worked. A tech working occasional shifts accrues slowly, so the real-world liability is modest, but it's real. Check your state's current rate and caps; the specifics change.
What you generally do NOT owe
- Health insurance. The ACA employer mandate begins at 50 full-time-equivalent employees — a threshold no small mobile IV company is anywhere near. If you have a handful of per-diem techs, you have no obligation to offer coverage.
- Retirement plans. Not federally mandated. (A few states run auto-IRA programs — worth a check, but it isn't a benefits package.)
- Paid vacation or PTO. Not mandated. (Sick time, above, is a separate and distinct requirement.)
- Guaranteed hours. That is the entire point of per diem. You schedule them when you have work, and not when you don't.
So the honest delta between the 1099 model you may be running today and a correct per-diem model is: a workers' comp premium, payroll taxes, and a small sick-time accrual. That's it. Not health insurance. Not retirement. Not vacation. Not guaranteed hours.
Weigh that against what the 1099 model actually risks — an uninsured on-the-job injury, back taxes, penalties, and potentially defending a civil suit with no policy behind you. The premium is the cheap version of that bill.
You keep the flexibility you actually wanted. You lose the exposure you didn't know you had.
None of this requires you to become a payroll expert. Any payroll provider — Gusto, ADP, Paychex, whoever — handles withholding, W-2s, unemployment filings, and state sick-time accrual automatically. It's a solved problem, and it is dramatically simpler than the misclassification it replaces.
How to check your own state (and what to ask)
This is the part no article can do for you, and any article that pretends otherwise is selling you false comfort.
- Start with the IRS's own guidance on contractor vs. employee — this is the federal baseline regardless of your state
- Identify which framework your state uses — ABC, modified ABC, or common law — and for which purpose (unemployment, workers' comp, wage-and-hour, and tax may each differ)
- Go to your state's labor or economic security department directly. State guidance beats any blog, including this one
- Ask an employment attorney: "Given that my techs use my medical director's authority to obtain supplies, follow my protocols, and take payment through my system — can they be contractors in this state?"
- Ask specifically: "If I forbid them from working for other IV companies, does that change your answer?"
- Ask your workers' comp carrier how they would treat your staffing model in a claim — they have an opinion, and you want to hear it before you need it
The quick version
- "They set their own hours" is not the test — per-diem nurses set their own hours and are W-2 employees
- There isn't one test — states use the ABC test, a modified ABC test, or the common law test, and a single state may use different ones for different purposes
- Published state lists disagree — verify with your state's labor department, not a blog table
- The Lowe's analogy works — right up until you forbid your tech from working for other companies. Exclusivity breaks it
- Mobile IV is structurally hard — compliant medicine requires control, and most techs can't source supplies or practice without your medical director
- ABC prong B is genuinely contested for mobile — the "usual course" vs. "usual place" of business readings point in opposite directions. Don't assume either
- Arizona explicitly carves out regulatory control (and offers a DIBS declaration) — but it binds only Arizona, not the IRS or DOL
- The real exposure is an uninsured on-the-job injury, not back taxes
- Per-diem W-2 is the answer nobody mentions — techs still pick up the calls they want, and the only real costs are workers' comp, payroll taxes, and state sick time. No health insurance obligation under 50 full-time-equivalent employees
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