PELRAS Update | February 2022 – There And Back Again – DOL Issues, Then Withdraws, COVID-19 Vaccination and Testing FLSA Guidance

Hobart J. Webster, Esq., Campbell Durrant, P.C. | February 2022

On January 20, 2022, the U.S. Department of Labor (“DOL”) issued Fact Sheet #84, “Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA)” addressing the circumstances under which employers are required to pay employees for time spent obtaining COVID-19 vaccinations or undergoing COVID-19 testing.

The following day, however, DOL withdrew that guidance, likely because Fact Sheet #84 cited to and partially relied upon the Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) regulations requiring large, private employers to implement a mandatory COVID-19 vaccine or testing program, which the U.S. Supreme Court functionally struck down on January 13, 2022. The OSHA ETS regulations were formally withdrawn on January 26, 2022. Although Fact Sheet #84 has been withdrawn, employers still face questions about whether and to what extent employee time spent being vaccinated or tested is compensable under the FLSA.

Withdrawn DOL Guidance Still Offers Insight

Although DOL formally withdrew the OSHA ETS regulations and Fact Sheet #84, the Fact Sheet still provides employers with potentially valuable insight into how DOL thinks about an employer’s obligation to compensate employees under the FLSA for time spent receiving vaccination or undergoing testing. In the absence of clear guidance from DOL, however, employers facing these types of issues should work closely with labor counsel to avoid potentially costly wage and hour litigation. 

Activities Occurring During Normal Working Hours

Under the FLSA, all time between the start and end of an employee’s workday must be paid, unless it falls within one of the exceptions stated in 29 C.F.R. Part 785, such as a bona fide meal break. Employer-required activities during normal working hours are therefore generally compensable.

Under existing DOL guidance and FLSA caselaw, employees must be paid for time spent going to, waiting for, and receiving medical attention required by their employer or on the employer’s premises during normal working hours. Thus, if an employer requires an employee to obtain a COVID-19 vaccination, 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 that the employee spends engaged in that activity is compensable. And employees must be paid for such time during normal working hours, regardless of where (i.e. onsite or offsite) the activity occurs.  

Activities Occurring Outside of Normal Working Hours

Under the FLSA, employers are required to pay employees for all hours worked, including work performed outside of normal working hours if the task that the employee is completing is necessary for the work they are paid to do. Generally, time spent engaged in employer-required activities that are necessary for an employee to perform their job safely and effectively are “integral and indispensable” to their work and therefore must be paid, even when they happen outside of normal working hours. For example, if a county health department employee is required to put on and take off personal protective equipment (PPE) prior to and after a shift to protect that employee from COVID-19 exposure, time spent putting on and taking off the PPE is compensable under the FLSA because it is necessary for the safe and effective performance of the employee’s job.

Time Spent Being Vaccinated Or Tested Isn’t Compensable Unless Mandated By Employer

A critical factor in determining whether time spent outside of normal working hours must be paid is whether the activity is required by the employer, in addition to being necessary for the employee to perform their job. Where vaccination or testing is not required by an employer, an employee’s choice to engage in such activities outside of normal working hours is generally not compensable.

Employees Who Receive An Accommodation To A Vaccine Mandate Policy

If an employer implements a mandatory COVID-19 vaccination policy, and an employee is unable to receive a COVID-19 vaccination (e.g., where a disability or sincerely held religious belief, practice, or observance precludes the employee from being vaccinated) and the employee is legally entitled to a reasonable accommodation, the time spent undergoing regular employer-required COVID-19 testing outside of normal working hours may be considered “integral and indispensable” to the employee’s work and therefore may be compensable. In such circumstances, mandatory COVID-19 testing is likely to be considered necessary for an employee to perform their jobs safely and effectively during the pandemic, given that vaccination is not a viable option for such employees.

Employees Who Decline Vaccination

If an employer implements a mandatory COVID-19 vaccination or testing policy requiring employees to receive the COVID-19 vaccine or undergo regular COVID-19 testing, but where the employee voluntarily declines to be vaccinated, the employer is unlikely to be required to pay the employee for time spent outside of normal working hours undergoing COVID-19 testing.  In such circumstances, where the employee could receive the vaccine but chooses to remain unvaccinated instead, the time the employee spends undergoing testing outside of normal working hours is unlikely to be considered “integral and indispensable” to their job.