Mandatory Medical Exams and the FLSA

Posted by: Bill Maccarone August 25, 2017

Dueling FLSA questions from two perspectives with the same answer.

Fire Chief’s question:

Our fire department began providing our firefighters with annual physicals several years ago. It was a tough sell in tough fiscal times but it was mandated by OSHA and we really had no choice. We try to schedule personnel while they are on duty, but one of our members ended up going on his day off due to scheduling conflicts. He just put in for payment for the time. Do we have to pay him?

Firefighter’s question:

It is time for my annual physical. The physical is required by the fire department. The chief picked the doctor and scheduled the appointment. He scheduled it for my day off. I spent more than two hours at the appointment. Do I get paid?

Answer to both: Most likely, yes . . . But it depends . . .

As a rule, time a firefighter spends during an employer-mandated medical exam is compensable. Employer-mandated medical exams during regular working hours will always be compensable. However, time spent while “off duty” submitting to employer-mandated medical exams requires a slightly different analysis.

Department of Labor (DOL) regulations clearly require that all time spent “waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked.” See 29 CFR §785.43 for more.

Whether employer-mandated off-duty medical examinations are compensable is a different story. Neither the FLSA nor the regulations directly addresses whether off-duty employer mandated physicals are compensable. However, the DOL has issued several opinion letters that may require that employers compensate employees for this time.

[W]henever an employer imposes special requirements or conditions that an employee must meet before commencing or continuing productive work, the time spent in fulfilling such special conditions is regarded as indispensable to the performance of the principal activity the employee is hired to perform. Included in this general category are required physical exams . . . DOL Wage and Hour Opinion Letter, Jan. 26, 1998.

Time spent undergoing a physical examination is time during which the employee’s freedom of movement is restricted for the purpose of serving the employer and time during which the employee is subject to the employer’s discretion and control. It is immaterial whether the time spent in undergoing the required physical examination is during the employee’s normal working hours or during nonworking hours. The physical examination is an essential requirement of the job and thus primarily for the benefit of the employer. Therefore, it is our opinion that the time so spent must be counted as hours worked under the FLSA. DOL Wage and Hour Opinion Letter, Oct. 7, 1997.

The key factor in determining the compensability of time spent at off-duty mandatory medical examinations is who benefits from the examination. If the employer benefits from the required examination it will most likely be compensable. On the other hand, if the employee benefits from the required examination, it most likely will not be compensable.

The compensability of employer-required medical exams is always a hot topic for debate. The FLSA is only part of this puzzle. Workers’ compensation laws and state laws will also play a significant role in making the ultimate determination on compensability. This is one of many topics discussed at the upcoming FLSA for Firefighters seminars. Please consider joining us.