Since the beginning of the COVID-19 pandemic, my clients have asked a lot of questions about paying employees for time spent testing for COVID-19 and receiving the COVID-19 vaccine. The United States Department of Labor previously provided some guidance on their web page of Questions and Answer Related to COVID-19 and the Fair Labor Standards Act. Here’s what DOL said:
7. If my employer requires COVID-19 testing during the workday, do I need to be paid for the time spent undergoing the testing?
Yes, under the FLSA, your employer is required to pay you for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
8. My employer is requiring me to undergo COVID-19 testing on my day off before I can return to the jobsite. Do I need to be paid for the time spent undergoing the testing?
It depends, under the FLSA, your employer is required to pay you for all hours that you work, including for time on your vacation day if the task you are required to perform is necessary for the work you are paid to do. For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
Here’s a link to the Q&A web page: FLSA Q&A
DOL and its Wage & Hour Division have now released “Fact Sheet #84,” which provides an additional level of detail for employers struggling with these issues. Here’s a link to the DOL Fact Sheet: DOL Fact Sheet #84. Here are the rules from that Fact Sheet in a nutshell:
- If an employer requires an employee to get vaccinated or tested for COVID-19 during normal working hours, the employer must pay for the time spent engaging in that activity.
- If an employer requires an employee to get vaccinated or tested outside normal working hours, the employer must pay for that time if the vaccine or testing is necessary for them to safely and effectively perform their job. Although not explicit, it appears that DOL is assuming that vaccines and testing are necessary for virtually all employees to safely and effectively perform their jobs. The example used by DOL involves assembly line workers and says: “the vaccine is necessary for them to safely and effectively perform their assembly line jobs.”
- Some employers have implemented vaccine mandates and granted accommodations to employees who cannot receive the vaccine for health-related or religious reasons. If the employer requires COVID-19 testing of those accommodated employees outside normal working hours, the employer must pay for the time.
- Some employer have adopted vaccine mandates with a voluntary test-out option. If an employee voluntary declines to be vaccinated (without a religious/health exemption), and the employer requires testing outside normal working hours, the employer is not required to pay for the time.
- Where vaccination or testing is not required by an employer, an employee’s voluntary decision to be tested or vaccinated outside normal working hours is not compensable.
My strong suggestion is that employers should follow this guidance from DOL. Nevertheless, stubborn employers might have an argument that they are not required to pay for testing and vaccination outside normal working hours. The general rule is that employers must pay for time outside of working hours if that time is “integral and indispensable” to the employee’s job.
And, DOL clearly considers vaccine/testing time to be “integral and indispensable” in most circumstances. But, at the end of the day, only a federal judge can decide if an employer has violated the Fair Labor Standards Act. And, generally, federal judges in the Eleventh Circuit (which includes Alabama) tend to be more conservative than the DOL. See Bonilla v. Baker Concrete Constr. Inc., 487 F.3d 1340 (11th Cir. 2007)(time spent by construction workers waiting to go through airport security was not “integral and indispensable” to their work.) So, it might be possible to argue, on a case-by-case basis, that vaccine/testing time is not “integral and indispensable” to a particular job. Again, I would not recommend this course of an action. But, it’s an argument that employers can make if push-comes-to-shove.