The DOL (Finally!) Provides Guidance on Compensability of COVID Testing/Vaccination Time!

By Fiona W. Ong - Shawe Rosenthal LLP

January 21, 2022

[*UPDATE – The DOL seems to have removed the fact sheet from its website – but we captured a printout. We also note that the fact sheet referenced the Vax-or-Test ETS as if it were still in existence; perhaps that’s why it was pulled. Be warned that the printout is NOT official and, according to the DOL, should NOT be relied upon! In other words, you won’t be able to cite to the guidance, but we believe the general FLSA principles will likely not change in any future guidance.]

For much of the past year or so, employers have struggled with the question of whether they must pay employees for the time spent getting vaccinated against or tested for COVID-19, particularly during off-duty hours. The U.S. Department of Labor has finally issued guidance* on this issue under the Fair Labor Standards Act.

Under the FLSA, employers must pay for all hours worked. Thus, all time between the start and finish of an employee’s workday is compensable (other than meal breaks or other breaks of more than 20 minutes), regardless of where it occurs (on-site or off-site lab/vaccination provider). Outside of normal working hours, an employer must pay for time spent on activities required in order for the employee to safely and effectively perform their job – such activities are considered “integral and indispensable” to their work.

So, in the context of COVID-19 testing and vaccination, here are the rules:

• Testing/vaccination that occurs during regular working hours must be paid.
• If the employer requires vaccination, any off-duty time spent getting the vaccine must be paid.
• If the employee is required to undergo testing in connection with a legally-required medical or religious exemption to a mandatory vaccination requirement, any off-duty time spent testing must be paid.
• If the employee is required to undergo testing because they choose not to be vaccinated, the employer is not required to pay for any off-duty testing time. This applies where an employer has implemented a policy that does not mandate vaccination, but requires unvaccinated employees to undergo testing (i.e. “vax-or-test”).
• If vaccination or testing is not required by the employer, the employee’s choice to engage in such activities during off-duty hours is not compensable.

Note, however, that state wage-hour laws may require employers to pay for testing or vaccination time where federal law does not. Therefore, it is important for employers to check whether any such laws apply before deciding not to compensate employees for off-duty testing or vaccination, in accordance with the DOL’s guidance.

This is obviously a fast-moving and complicated situation. We will continue to send out E-lerts on any significant developments. You may sign up for our e-communications by contacting shawe@shawe.com.

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