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It’s “What’s Up? Wednesday.” Time to talk about COMPENSATION for an ER visit after a WORK INJURY . . .

By April 2, 2014July 23rd, 2018Human Resources

You asked: “Our employee was injured on the job and spent three hours at the hospital during his regular shift. Do we have to pay the employee for his time in the hospital? And do we have to count these hours when calculating the employee’s Overtime Pay?

Alex answers: By now, unless you’ve been living under a rock … or even if you have been living under a rock but you occasionally peruse our blog … you are aware that all employers must abide by the federal Fair Labor Standards Act (FLSA). And yes, that means you. Because this very complex law has been amended and revised countless times over the years, it covers nearly every employer in the United States. The basic gist of the FLSA is that employers must pay employees at least the minimum wage for all hours worked and nonexempt “hourly” employees must be paid the overtime rate (one and one half times their regular rate of pay) for all hours they work over 40 in a work week. Seems simple enough, right?

Of course not. So now let’s go back to our anonymous employer’s question on how an employee’s hours need to be counted for the overtime calculation. First, we need to define the term “hours worked.” Awhile back, the Supreme Court of the United States of America defined “work” as “physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Then, the courts essentially changed their mind and decided that an employee didn’t actually have to exert themselves to be considered employees (for example, receptionists are still paid for their time to sit and read a book while they wait for visitors to arrive), but rather employees needed to be paid for the time they spend doing things that are “suffered or permitted by an employer.” So now, if you check the Department of Labor’s website, employees must be paid for all time that “he/she must be on duty, or on the employer’s premises or at any other prescribed place of work.” Also included is any additional time the employee is suffered or permitted (i.e., allowed) to work.

Since your employee wasn’t on duty or at a work site, then he was not working. Therefore, unless the employee was engaging in work while waiting at the hospital (such as taking work calls, writing or reading work emails, etc.), then no, you would not be required to pay him for those three hours and, of course, would not count it when calculating overtime hours.

Also, according to our Workers’ Compensation experts, in most states, Workers’ Compensation laws do not require that employers pay employees for time missed from work due to a Workers’ Comp injury.

Therefore, unless in this situation your employee was an exempt “salaried” employee, you do not have to pay the employee for their time spent at the hospital. A salaried person, of course, could not have their pay docked for this time off of work, but rather would need to be paid or be required to use any paid time off (such as sick, vacation or personal time.)

Finally, I think it is important to mention that while it’s not required by law, we find that most employers do indeed pay their hurt employees for the few hours they may spend out of work seeking initial medical attention for an injury sustained in the course of their job that day. They typically consider it an act of goodwill and I think you should, too. I promise that it will create a positive interaction with the employee that will inevitably come back to you.

If you need further clarification on hours worked under the FLSA, email us at!

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