As many employers are implementing a weekly COVID-19 vaccination or testing mandate (which will soon be required for all employers with more than 100 employees, as we have discussed here), a recurring issue is whether the weather that employees spend to take this weekly test must be paid under federal and state laws on wages and hours. And the answer is a lawyer, âWell, it depends. ” (Sure).
Earlier in the pandemic, the US Department of Labor issued guidance on COVID and the Fair Labor Standards Act. This guide included the following questions and answers:
7. If my employer requires a COVID-19 test during the working day, do I have to be paid for the time spent taking the test?
Yes, under the FLSA, your employer is required to pay you for the time spent waiting and receiving medical attention as instructed or on their premises during normal working hours. Other laws may provide better protections for workers, and employers must comply with all applicable federal, state, and local laws.
8. My employer requires that I take a COVID-19 test on the day of my leave before I can return to the job site. Do I have to be paid for the time spent taking the test?
It depends, under the FLSA, that your employer is required to pay you for all the hours that you work, including the time on your vacation day if the task you are required to perform is necessary for the job for which you are working. get paid. For many employees, undergoing COVID-19 testing can be compensable as the testing is necessary for them to be able to perform their jobs safely and efficiently during the pandemic. For example, if a grocery store cashier who has a significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, that time is likely compensable as it is an integral and essential part of her work during the pandemic. . Other laws may provide better protections for workers, and employers must comply with all applicable federal, state, and local laws.
Test during the working day. So, if the employee is tested during their normal working day, this time is definitely compensable. (At least, it’s clear.)
Tests during off-duty hours – Federal law. But if the employee has to take the test in his spare time, it becomes much more complicated. Under the leadership of the DOL above, the question really is whether “testing is necessary for them to be able to perform their jobs safely and effectively during the pandemic”. For those in direct contact with the public, it would appear that they meet this standard, which means they should be paid for the time.
As for others who do not deal directly with the public, although they are required by the employer’s / government mandate to take the test, it is not “necessary” for their specific job (although it is required, if you understand the difference). For these other people, it is probably not compensable time.
Existing case law on the somewhat related question of security checks supports this difference – the United States Supreme Court has ruled that post-shift security checks, although required by the employer, are not part of the duties employee’s main and do not need to be compensated (we discuss this 2014 decision in detail here).
Of course, no court has ruled on this specific COVID testing issue yet, so who knows if they would agree with the DOL or our analysis? They may find that the required testing time is compensable for all employees, regardless of the job.
In light of OSHA’s upcoming temporary emergency standard that will require employers with more than 100 employees to implement these immunization or weekly testing mandates, this issue is significant. We hope that the DOL (OSHA’s parent agency) will provide clarification. (And, in fact, we sent a formal request to OSHA to address this specific issue during their recent ETS briefing, which we talked about here. We’re trying, folks!)
Out-of-Service Testing – State Laws. But regardless of the federal FLSA, employers should also keep state laws in mind – and those are, frankly, everywhere (yes, literally and figuratively). Depending on the state, the out-of-service test time may or may not be considered working time. For example, California just released guidelines that COVID-19 testing time is work time and therefore employers must pay for it. In Maryland (my home state), employers have to pay for every time employees are required to show up at the workplace, which creates a strange situation where employers will have to pay if tests are performed on the job. workplace (as many health care employers do) but may not be if the employee travels elsewhere to take the test.
If the time is paid, a few options. Now, if the weather is compensable, that is not necessarily the end of the matter. Potentially, testing time can be paid at a different rate – eg minimum wage. Employers interested in this option should check applicable state laws, including those that may require advance notice (often a pay period) of any reduction in the rate of pay.
Also, another potential option is to require the employee to use their PTO or accumulated vacation (but probably NOT statutory sick leave, as they’re not actually sick – depending on what the Applicable sick leave law says about the reasons for sick leave and whether employees may be compelled to use it for a valid reason) to cover testing time. (A bit related when it comes to exempt employees, the DOL said in an opinion letter that employers can force them to use the PTO to receive compensation for time off in order to meet wage requirements for the PTO. exempt status – I’m extrapolating from this principle.) Under the federal FLSA, the employee is paid, so they must meet FLSA requirements (although, again, this approach to employees not exempted has never been tested in front of the DOL or in court).
Arguably an employee could claim that the employer violated a contractual commitment of the PTO / Vacation policy – but to the extent that the policy is in a manual with a disclaimer, this would not be not a viable claim. And (BIG ATTENTION HERE), employers MUST check state law (or, in fact, consult with their employment counselor) to see if this would be allowed, as many states consider vacations or PTO to be a compensation, and there may be rules to force employees to use it.
So, at the end of the day, it’s not an easy question, there are no easy answers, and we hope the DOL will help provide some clarification. But if payment is required, there may be attractive options available to the employer, instead of paying at the normal time …