Do Arkansas county EMS workers get the same vacation, sick leave, and overtime rules as city firefighters?

Plain-English summary

Madison County's EMS staff worked a firefighter-style 24-on/48-off schedule with overtime calculated after 212 hours per four-week period. The county was treating PTO accrual the same as for ordinary 40-hour-per-week employees. Representative McKenzie asked whether that structure complied with state law and whether county EMS shared the same statutory framework as municipal fire departments.

Then-Attorney General Leslie Rutledge gave three answers. First, no: Arkansas Code §§ 14-53-107 (annual vacation) and 14-53-108 (accumulated sick leave) are city-firefighter statutes; nothing parallel applies to county EMS. Second, sick-leave and vacation policy for county EMS is a county-level legislative function under Ark. Code Ann. § 14-14-805(2), with the only state-law constraint being that any policy must be "general in nature and ... uniform in application to all employees of the county." So the Madison County PTO accrual policy would meet that uniformity requirement on its face. Third, the overtime question requires the federal Fair Labor Standards Act and the Arkansas Minimum Wage Act, both of which exempt employees in "fire protection activities" from the standard 40-hour overtime rule and substitute the § 207(k) work-period rule. The FLSA's definition of "employee in fire protection activities" can include paramedics and EMTs, but only if they are trained in fire suppression, have legal authority to engage in suppression, and work for a department that does suppression. Whether a particular county EMS worker fits that definition is a factual question that requires consulting the U.S. Department of Labor or counsel.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why don't city-firefighter statutes apply to county EMS?
The statutes are written for cities. Section 14-53-107 governs "annual vacation" for city firefighters; section 14-53-108 governs "accumulated sick leave" for city firefighters. The opinion read these as targeted statutes that the legislature limited to cities. The General Assembly has not enacted parallel rules for county EMS.

What governs county EMS leave then?
Ark. Code Ann. § 14-14-805(2) gives the quorum court general legislative authority to set employee policy for the county, including vacation and sick leave. The only constraint is uniformity: county leave legislation must "be only of a general nature and shall be uniform in application to all employees of the county."

What is the FLSA "fire protection activities" exemption, and why did the AG punt?
Section 207(k) of the FLSA permits public agencies to use a 28-day work period (216 hours) instead of a 40-hour week for "any employee in fire protection activities." Arkansas adopted § 207(k) by reference at § 11-4-211(e). The catch is the federal definition at 29 U.S.C. § 203(y): the employee must be (1) trained in fire suppression, (2) legally authorized and responsible to engage in suppression, (3) employed by a fire department of a municipality, county, fire district, or state, and (4) actually engaged in prevention, control, and extinguishment of fires or response to emergencies where life, property, or the environment is at risk. EMTs and paramedics can fit, but only with the right training and the right employer. Applying that test to a specific worker is exactly the sort of factual inquiry the AG declined to do.

Was the Madison County PTO policy itself a problem?
The opinion suggested no. Madison County gave all employees the same monthly PTO accrual, which is the kind of uniform application § 14-14-805(2) demands. Whether the underlying overtime calculation was lawful was a separate, federal-law-driven question.

Background and statutory framework

The opinion sat at the intersection of three regimes. State firefighter-specific statutes (§§ 14-53-107 and -108) govern city fire departments. The county home-rule statute (§ 14-14-805(2)) governs county employee policy generally and is silent on EMS specifically. Federal labor law (29 U.S.C. §§ 207(a), 207(k); 29 C.F.R. Part 553) governs minimum wage and overtime for political subdivisions following Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), with a special work-period exemption for fire-protection employees. Arkansas's state minimum wage act (§ 11-4-201 et seq.) parallels federal law and incorporates § 207(k) by reference at § 11-4-211(e).

The opinion declined to apply the fire-protection exemption test to actual Madison County EMS workers, noting that "[t]he application of the FLSA's exemption for employees in 'fire protection activities' (which has been incorporated by Arkansas law) under any given set of facts is outside the scope of an opinion from this office. The question turns largely on the nature of the position at issue."

Citations

State statutes:

• Ark. Code Ann. § 14-53-107 (Supp. 2019) (city firefighter vacation)
• Ark. Code Ann. § 14-53-108 (Repl. 2013) (city firefighter sick leave)
• Ark. Code Ann. § 14-14-805(2) (Repl. 2013) (county legislative authority over employee policy)
• Ark. Code Ann. § 11-4-201 et seq. (Repl. 2012 and Supp. 2019) (Arkansas Minimum Wage Act)
• Ark. Code Ann. § 11-4-203(4)(a) (Supp. 2019) (defining "employer" to include political subdivisions)
• Ark. Code Ann. § 11-4-211(a), (e) (Supp. 2019) (overtime; fire-protection-activities exemption)

Federal statutes and regulations:

• 29 U.S.C. § 201 et seq. (FLSA)
• 29 U.S.C. § 203(y) (definition of "employee in fire protection activities")
• 29 U.S.C. § 207(a), (k)
• 29 C.F.R. Part 553
• 29 C.F.R. § 553.210

Cases:

• Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)

Arkansas administrative rules:

• Arkansas Department of Labor and Licensing, Administrative Rules Regarding the Arkansas Minimum Wage Act, Rule 010.14-106(O)(2)-(3); Rule 010.14-109(a) (July 2, 2020)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-015
March 29, 2021
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Gayla H. McKenzie
State Representative
18134 West Highway 72 SE
Gravette, AR 72736-8021
Dear Representative McKenzie:
This is in response to your request for an opinion concerning certain employees of a county-operated ambulance service. As background for your questions, you have provided information regarding the work schedule and paid time off for emergency medical services (EMS) employees in Madison County. You say that EMS staff "do a version of firefighter lay scheduling where ... overtime is calculated after 212 hours worked during a four-week period." You explain that "[t]his is based upon the premise that a twenty-four to forty-eight (24-48) hour per week schedule represents an average of 56 hours per week with overtime beginning after 53 hours."

Regarding sick or personal days, you say that Madison County "currently calculates the paid time off, hereafter referred to as PTO, on the same basis of every other 40-hour per week employee. It results in the same number of PTO hours (10 per month) accumulated to each county employee's PTO bank."

You question the legality of this pay structure, and you specifically ask:

1. Do county EMS agencies adhere to and follow the same provisions of state law as local municipal fire departments?
2. Additionally, what is the correct interpretation of state law that dictates the proper pay structure for EMS departments?
3. Is there any difference in state law regarding hours' policy for a county operated ambulance service that does not provide fire suppression?

RESPONSE
I will address your individual questions below. As a preliminary matter, however, the precise focus of your questions is somewhat unclear. The information you have provided regarding EMS employees' work schedules suggests that you are asking, at least in part, about wage-and-hour (overtime) law. In that regard, reference must be made to the Arkansas Minimum Wage Act and the federal Fair Labor Standards Act. As explained below, there are provisions in these laws concerning overtime that can apply to EMS personnel. But the application of these provisions depends upon a number of factors and requires a factual inquiry that is outside the scope of an opinion from this office.

To the extent you are asking about paid time-off for EMS employees, there is no specific statutory provision for paid leave in the form of annual leave or sick leave for county EMS employees. State law provides that counties may enact legislation dealing with general employee policy and practices, including vacation and sick leave policies. State law does not dictate those policies.

DISCUSSION
Question 1: Do county EMS agencies adhere to and follow the same provisions of state law as local municipal fire departments?

State law specifically addresses "annual vacation" and "accumulated sick leave" for city firefighters. There are no similar provisions applicable to county EMS agencies. The answer to this question is, therefore, "no."

Question 2: Additionally, what is the correct interpretation of state law that dictates the proper pay structure for EMS departments?

If this question is asking about paid time-off for sick or personal days, please see my response to Question 1 above. As indicated therein, state law does not dictate any pay structure for EMS departments related to sick leave or personal leave. State law instead provides that counties may enact legislation dealing with general employee policy and practices, including vacation and sick leave policies. State law does not dictate those policies. State law only requires that county legislation dealing with such matters as vacation and sick pay must be general in nature and apply uniformly to all employees. A policy such as the one you have described, which provides for the same number of accumulated hours of paid time off each month for all county employees, meets this requirement.

The information you have provided regarding EMS employees' work schedules suggests that this question is also asking about wage and hour (overtime) law. This question requires reference to both state and federal law. The federal Fair Labor Standards Act (FLSA) generally requires employers to pay certain employees an increased wage for hours worked in excess of forty hours per week. The Arkansas Minimum Wage Act sets forth the same general requirement.

There are numerous exceptions to and exemptions from the general wage and overtime requirement, including an exemption under both the FLSA and the Arkansas Minimum Wage Act for employees in "fire protection activities." The Arkansas act specifically incorporates the FLSA in this regard, which provides for the work periods that are typical to fire protection.

Subsection 207(k) states in relevant part:
No public agency shall be deemed to have violated subsection (a) with respect to the employment of any employee in fire protection activities ... if (1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or (2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days compensation at a rate not less than one and one-half times the regular rate at which he is employed.

"Employee in fire protection activities" is defined as follows:
(y) "Employee in fire protection activities" means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who (1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

The application of the FLSA's exemption for employees in "fire protection activities" (which has been incorporated by Arkansas law) under any given set of facts is outside the scope of an opinion from this office. The question turns largely on the nature of the position at issue. It also requires the interpretation and application of federal labor law, an undertaking that is beyond the scope of an opinion from this office. I suggest that you contact the U.S. Department of Labor to determine the potential application of federal law on this issue.

Question 3: Is there any difference in state law regarding hours' policy for a county operated ambulance service that does not provide fire suppression?

See response to Question 2 above regarding the application of the wage and hour law exemption for employees in "fire protection activities."

Sincerely,
LESLIE RUTLEDGE
Attorney General