As many employers implement a COVID-19 vaccination-or-weekly-testing mandate (soon to be required of all employers with 100+ employees, as we discussed here), a recurring issue is whether the time that employees spend getting that weekly test must be paid under federal and state wage and hours laws. And the answer is a lawyerly, “Well, it depends.” (Of course).
Earlier on in the pandemic, the US Department of Labor issued some guidance on COVID and the Fair Labor Standards Act. This guidance included the following Q&As:
7. If my employer requires COVID-19 testing during the workday, do I need to be paid for the time spent undergoing the testing?
Yes, under the FLSA, your employer is required to pay you for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
8. My employer is requiring me to undergo COVID-19 testing on my day off before I can return to the jobsite. Do I need to be paid for the time spent undergoing the testing?
It depends, under the FLSA, your employer is required to pay you for all hours that you work, including for time on your vacation day if the task you are required to perform is necessary for the work you are paid to do. For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
Testing during the workday. So, if the employee is being tested during their normal workday, that time is definitely compensable. (At least that’s clear.)
Testing during off-duty time – federal law. But if the employee is being required to get the testing done during their off-duty time, it becomes a whole lot messier. Under the DOL’s guidance above, the issue really is whether “the testing is necessary for them to perform their jobs safely and effectively during the pandemic.” For those in direct contact with the public, it would seem that they meet that standard, meaning that they should be paid for the time.
As for others not directly dealing with the public, although they are being required by the employer/government mandate to get the testing, it’s not “necessary” for their specific job (even though it’s being required, if you understand the difference). For these other folks, it’s arguably not compensable time.
The existing caselaw on the somewhat-related issue of security screenings is supportive of this difference – the U.S. Supreme Court has held that post-shift security screenings, although required by the employer, are not a part of the employee’s principal duties and need not be compensated (we discuss this 2014 ruling in detail here).
Of course, no court has actually ruled on this specific COVID-testing issue yet, so who knows if they would agree with the DOL or our analysis? It’s possible they could find that required testing time is compensable for all employees, regardless of the job.
Given the forthcoming OSHA Emergency Temporary Standard that will require employers with 100+ employees to implement these vaccination-or-weekly-testing mandates, this issue looms large. We hope that the DOL (OSHA’s parent agency) will provide clarification. (And, in fact, we sent in a formal request to OSHA to address this specific issue during their recent briefing on the ETS, which we blogged about here. We’re trying, folks!)
Off-Duty Testing – State Laws. But regardless of the federal FLSA, employers must also keep state laws in mind – and these are, frankly, all over the place (yes, literally and figuratively). Depending on the state, off-duty testing time may or may not be considered working time. For example, California just issued guidance that COVID-19 testing time is working time and therefore employers must pay for it. In Maryland (my home state), employers must pay for any time that employees are required to report to the workplace, which sets up a weird situation where employers will have to pay if the testing is done at the workplace (like many healthcare employers do) but perhaps not if the employee goes elsewhere to get the test.
If the Time Is Paid, Some Options. Now, if the time is compensable, that’s not necessarily the end of the matter. Potentially, the testing time can be paid at a different rate – e.g. minimum wage. Employers who are interested in this option need to 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 accrued PTO or vacation (but probably NOT statutory sick leave, since they’re not actually sick – depending on what any applicable state sick leave law says about reasons for sick leave and whether employees can be forced to use it for a qualifying reason) to cover the testing time. (Somewhat relatedly with regard to exempt employees, the DOL has stated in an opinion letter that employers can force them to use PTO to receive compensation for time off in order to meet the salary requirement for exempt status – I’m extrapolating from this principle.) Under the federal FLSA, the employee is being paid, so it should meet the requirements of the FLSA (although, again, this approach with regard to non-exempt employees has never been tested before the DOL or in court).
Arguably, an employee might claim that the employer was violating some contractual commitment of the PTO/vacation policy – but to the extent that the policy is in a handbook with a disclaimer, this would not be a viable claim. And (BIG CAUTION HERE), employers MUST check state law (or, actually, consult with their employment counsel) to see if this would be permitted, since many states consider vacation or PTO to be compensation, and there may be rules around forcing employees to use it.
So, bottom line, this is 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 some interesting options available to the employer, in lieu of paying straight time…