Friday, January 21, 2022

DOL: Pay employees for job-mandated COVID vaccines, tests, screening during normal work hours

[Update 1/21/2022 2:05 pm: Where did it go? Looks like DOL pulled the Fact Sheet described in this post from its website (although, it still appears in the Department's Index of fact sheets)]. 

Welp, I'm sure this was supposed to coincide with the now-seemingly-dead OSHA vaccine mandate. That said, it it applies to employer mandates more broadly. I'm talking, of course, about U.S. Department of Labor Wage and Hour Division Fact Sheet #84: Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA) (just rolls right off the tongue, doesn't it?). 

The bottom line:

[I]f an employer requires an employee to obtain 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 that the employee spends engaged in the activity is compensable. Employees must be paid for such time during normal working hours, regardless of where the activity occurs.

Sounds simple enough, but what about mandatory activities that occur outside of normal working hours?

DOL appears to take the general position that employer-mandated COVID-19-related activities are still compensable when done outside of working hours. But, there's a carveout in a vax-or-test scenario for employees who "voluntarily" choose not to get vaccinated and get tested instead - they do not get paid for their time spent testing. Employees with a disability or religious exemption to the vaccine mandate are not voluntarily foregoing the vaccine, so they would get paid for testing.

I should also note that the DOL's position on this seems based on an argument that is very similar to OSHA's (losing) argument at the Supreme Court. Specifically, the DOL fact sheet reads:

As reflected in the OSHA Vaccination and Testing ETS, the Federal Government has determined that vaccination is the most effective and efficient control available to protect employees from becoming seriously ill and dying due to occupational exposures to COVID-19. Employers must pay employees who report to a workplace where other individuals are present and who do not work exclusively outdoors for time spent going to, waiting for, and obtaining a mandatory COVID-19 vaccine dose because it is necessary that employees be able to perform their jobs safely and effectively during the pandemic.

In the context of the OSHA ETS, the Supreme Court specifically rejected this argument that vaccines are workplace employment safety regulations. So, it is not clear if DOL would fair any better - perhaps they would because in this context it would be an employer-issued requirement.

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