Two weeks ago, the U.S. Supreme Court placed a stay on implementation of an emergency temporary standard (“ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) that would have required employers with more than 100 employees to either mandate that employees be vaccinated against COVID-19 or submit to weekly testing. On January 25, 2022, OSHA withdrew the ETS.
However, many employers of all sizes have made policy decisions to require vaccination or testing. The U.S. Department of Labor (“DOL”) has now issued a “Fact Sheet” providing reminders and guidance on when employers must pay hourly employees for time spent getting vaccinations or testing pursuant to the requirements of the Fair Labor Standards Act (“FLSA”). OSHA’s withdrawal of the ETS does not change employer’s obligations under the FLSA to pay employees for activities that are deemed “integral and indispensable” to their jobs.
A summary of the DOL’s guidance on these topics is as follows:
- If employees are required by their employer to be vaccinated against COVID-19 or submit to regular testing and the employees engage in off-site activities to accomplish these requirements during normal working hours, they must be paid for the time spent engaging in the off-site activities.
- If an employer requires employees to be vaccinated against COVID-19 (unless exempted due to a disability or religious accommodation) or submit to regular testing, and employees must use their personal time (when they are not scheduled to work) to comply with these requirements, they must be paid for the time spent getting vaccinations or tests. This includes time spent going to, waiting for and undergoing the testing or vaccination.
- If an employer’s policy gives employees the option of vaccination or testing and employees are not entitled to reasonable accommodation for religious or disability reasons, the time spent testing in lieu of vaccination is not time for which the employer must pay employees.
- If an employer does not have a policy requiring testing or vaccination, employees are not entitled to pay for time spent testing or receiving vaccinations.