Employment Law Alert – Breaking News: DOL Finally Confirms Rules on When Employers Must Pay For Time Spent Testing/Getting Vaccinated
January 21, 2022
WARNING: DOL pulled this FAQ shortly after it was published, without explanation. Our best guess is DOL did this because the FAQ referred to the OSHA vaccine or test ETS, and OSHA announced that it is withdrawing the ETS. If our hunch is correct, removing reference to the OSHA ETS will not likely have impact on the FLSA guidance—meaning the guidance will ultimately come back in a similar form. Stay tuned – we will update this Alert when the DOL provides additional information
Finally providing an answer to one of the questions we frequently hear from employers, the DOL issued an FAQ outlining when Employers must pay for the time their non-exempt employees spend getting vaccinated and/or testing for COVID. The FAQ can be found HERE.
During Normal Working Hours: If the COVID activity occurs at work, DOL says the Employer must pay for the time. Specifically, “if an employer requires an employee to obtain a COVID-19 vaccine dose, undergo a COVID-19 test, or engage a COVID-19 related health screening or temperature check during the employee’s normal working hours, the time that the employee spends engaged in the activity is compensable.”
Outside of Normal Working Hours: If the employer requires the vaccine and offers testing as an accommodation for religious/medical objectors, and the testing occurs outside of normal working hours, the Employer must pay for the time. Specifically, “[w]here the employer has a mandatory COVID-19 vaccination policy, but the employee is unable to receive a COVID-19 vaccination… and the employee is entitled to a reasonable accommodation under federal civil rights laws, the time spent undergoing regular employer-required COVID-19 testing outside of normal working hours is ‘integral and indispensable’ to the employee’s work and therefore compensable.” Similarly, if the employer requires the vaccine and the employee gets the shot during off hours, that time is compensable.
BUT- if the employer’s policy is vaccine or test, and the employee voluntarily chooses to test (and is not entitled to a medical/religious accommodation), then the employer is NOT required to pay for time spent testing (outside of normal work hours).
Moreover, if the employer does not implement a vaccine or test policy, the DOL clarifies that “an employee’s choice to engage in such activities outside of normal working hours is generally not compensable.”
Importantly – this is just the federal DOL’s interpretation of the FLSA. Other laws and obligations – for example state laws, or collective bargaining agreements, may reach different conclusions. The FAQ outlines some examples that might be helpful, but please reach out to your employment lawyer if you have questions or concerns.
Meredith “Merry” Campbell
The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.