Note: On January 24, 2022, the DOL removed Fact Sheet #84 from its website. For more information please see our follow-up Alert.
The U.S. Department of Labor (DOL) has issued Fact Sheet #84 (available here) addressing the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations under the Fair Labor Standards Act (FLSA). The Fact Sheet addresses how the OSHA Vaccination and Testing Emergency Temporary Standard (ETS) factors into the DOL’s analysis of whether such time is compensable under the FLSA. The U.S. Supreme Court has stayed the ETS from going into effect, determining that OSHA likely lacked the authority to impose the ETS.
The DOL stated that employees must be paid for time spent going to, waiting for, and receiving medical attention required by an employer or on the employer’s premises during normal working hours. Specifically, if an employer requires an employee to get a COVID-19 vaccine dose, undergo a COVID-19 test, or engage in a COVID-19 related health screening or temperature check during the employee’s normal working hours, the time the employee spends doing so is compensable. This is the case regardless of where the activity occurs.
The DOL also addressed activities that occur outside of normal working hours. The DOL stated that employers are required to pay employees for time outside of normal working hours if the task employees are required to perform is necessary for the work they are paid to do. Time spent engaged in employer-required activities that are necessary for employees to safely and effectively perform their jobs is “integral and indispensable” to their work and therefore must be paid. As an example, if an employer has implemented a mandatory COVID-19 vaccination policy and requires employees to receive COVID-19 vaccinations after their shifts or on weekends, then the employer must pay employees for the time spent doing so because the vaccine is necessary for them to safely and effectively perform their jobs.
Where an employer has a mandatory COVID-19 vaccination policy, but an employee is unable to receive a vaccination (e.g., due to a disability or sincerely held religious belief) and is required instead to undergo testing, any time spent outside of normal working hours undergoing regular employer-required COVID-19 testing is “integral and indispensable” to the employee’s work and therefore compensable. The employee must be paid for the time spent going to, waiting for, and undergoing the testing.
Where an employee is able to receive the COVID-19 vaccine as an alternative to regular COVID-19 testing but has voluntarily declined to be vaccinated, the employer is not required to pay the employee for time spent undergoing regular COVID-19 testing. Since the employee chose not to get vaccinated, the time spent undergoing testing outside of normal working hours is not “integral and indispensable” to the employee’s job.
Where neither vaccination nor testing is required by an employer, an employee’s choice to engage in such activity outside of normal working hours is generally not compensable.
This Fact Sheet is the most recent guidance by the DOL regarding the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations under the FLSA. It should not be considered in the same light as official statements of position contained in regulations. Employers should consult with legal counsel to ensure their COVID-19 related policies and practices comply with the FLSA’s requirements.
If you have any questions regarding these developments, please contact the author, Rick Warren, rwarren@fordharrison.com, a partner in our Atlanta office and a member of FordHarrison’s Coronavirus Taskforce. Of course, you can also contact the FordHarrison attorney with whom you usually work.