FLSA2002-10 — Paid sick leave as compensable hours worked

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

November 1, 2002
FLSA2002-10
Dear
Name*,

This is in response to your request for an opinion concerning the application of the Fair Labor Standards
Act, 29 U.S.C. 201 et seq. (FLSA), to employees of the
Name* Fire District. The specific question is
whether the time an employee is required to remain at his or her residence while on paid sick leave is
considered compensable hours worked which must be included in the computation of overtime under the
FLSA.

Under the sick leave policy in question, employees who are granted the use of sick leave are required to
remain at home for the entire duration of their assigned shift and are required to remain available for
telephone contact. During this time, the employer does not consider the employee available by telephone
if the employee uses call forwarding, answering machines, or beepers or if the employer experiences
repeated busy signals upon attempting to contact the employee. Employees who are granted sick leave
are required to contact their employer prior to leaving home while on sick leave. The policy expressly
provides that these employees are permitted to leave home to see a licensed physician or obtain
prescription medicine from a local pharmacy.

Under the FLSA, when an employee is placed in an “on call” situation, at home or at another location,
such time is compensable where the conditions placed on the employee’s activities are so restrictive that
the employee cannot use the time effectively for personal pursuits. In Armour & Co.
v. Wantock, 323 U.S.
126 (1944), and Skidmore
v. Swift & Co., 323 U.S. 134 (1944), the Supreme Court explained that whether
the time is compensable depends on whether the restrictions on the employee’s activities are so
significant that the time is being spent predominantly for the employer’s benefit. This determination
depends on all the circumstances of the case. An employment relationship may contemplate that an
employee so restricted has been hired to spend time waiting to respond to the employer’s needs, in which
case the employee is traditionally described as having been “engaged to wait,” and such time constitutes
compensable hours of work. Wantock
, supra, 323 U.S. at 133. See also 29 C.F.R. 785.16-17, which
address off-duty and on-call time (copies attached). On the other hand, where the restrictions on
employees’ activities while on call do not prevent them from pursuing their normal pursuits, such
employees are described as “waiting to be engaged,” and such time is not compensable. Skidmore
,
supra, 323 U.S. at 139.

Your inquiry presents a special case, whereby an employee chooses to enter paid sick leave status
because of an illness or injury which makes the employee unable to work, and the employer’s policy
requires the employee to remain at home under the circumstances described above. A number of courts
have considered whether an employee’s time on sick leave under similar circumstances constitutes hours
worked under the FLSA. In Aiken
v. City of Memphis, Tennessee, 190 F.3d 753, 760-61 (6th Cir. 1999),
cert. denied, 528 U.S. 1157 (2000), Debraska
v. City of Milwaukee, 189 F.3d 650, 651-2 (7th Cir. 1999),
and Capasso
v. Metropolitan Transportation Authority of the State of New York, 198 F. Supp. 2d 452, 460
(S.D.N.Y. 2002), employees on paid sick leave were required to remain at home unless granted
permission to leave by their supervisor. Such permission was readily granted so that the employee could
visit a physician, pick up prescription medicine, obtain food, exercise under medical direction, and attend
to other personal business, such as attending religious services. In these cases, the courts found that the
employees were free to use their time at home as they pleased, consistent with their employers’ sick
leave policies, and that such time was not spent predominantly for the benefit of their employers. As a
result, the employees were not considered to have been “engaged to wait,” and the time at home while on
sick leave did not have to be included in hours worked when overtime was computed. The
Name* fire
district policy is analogous to the policies at issue in Aiken
, Debraska, and Capasso. Accordingly, by the
terms of the
Name* fire district policy, employees’ time spent at home on sick leave is not considered
hours worked for FLSA purposes and is not to be included in the computation for overtime.

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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

This opinion is based exclusively on the facts and circumstances described in your request and is given
on the basis of your representation, explicit or implied, that you have provided a full and fair description of
all facts and circumstances which would be pertinent to our consideration of the question presented.
Existence of other factual or historical background not contained in your request might require a different
conclusion than the one expressed herein. You have also represented that this opinion is not sought on
behalf of a client or firm that is under investigation by the Wage and Hour Division, or which is in litigation
with respect to, or subject to the terms of any agreement or order applying, or requiring compliance with,
the provisions of the FLSA.

We trust that the above satisfactorily responds to your inquiry.

Sincerely,

Tammy D. McCutchen
Administrator

Enclosure

Note: * The actual name(s) was removed to preserve privacy.

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