The California Department of Industrial Relations (DIR) recently updated its “Guide to COVID-19 Related Frequently Asked Questions [FAQs]” to include wage and hour issues arising out of employer-mandated COVID-19 tests or vaccinations.
On March 4, 2021, the Department of Fair Employment and Housing (DFEH) confirmed that an employer does not violate the California Fair Employment and Housing Act (FEHA) by requiring employees to receive an FDA-approved COVID-19 vaccine so long as the employer does not discriminate against or harass employees or job applicants on the basis of protected characteristics, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against employees who engage in protected activity, such as requesting an accommodation. While this guidance arguably protects employers against FEHA claims, employers should not take the DFEH’s guidance as permission to mandate vaccines in other contexts, and it is not yet clear whether employers can safely mandate vaccines approved only under Emergency Use Authorizations by the Food and Drug Administration.
If employers can legally mandate vaccines, the question becomes whether employers must pay for the time spent being vaccinated. Now, the DIR has weighed in on employer obligations to pay for tests and vaccines when mandated by the employer.
For ease of reference, the FAQ is copied here.
I. Is my employer required to compensate me for the time spent obtaining a COVID-19 test or vaccination?
If the employer requires an employee to obtain a COVID-19 test or vaccination (see Department of Fair Employment and Housing FAQs for guidance on the types of COVID-19 tests an employer may require and on vaccination), then the employer must pay for the time it takes for the testing or vaccination, including travel time.
The employer must pay for the time it takes for testing or vaccination because such time would constitute “hours worked.” The term “hours worked” means the time during which a worker is subject to the control of an employer, and includes all the time the worker is suffered or permitted to work, whether or not required to do so. Under this definition, one way to determine whether time a worker spends performing a task must be paid as time worked is whether the employer exercised control over the worker by requiring the worker to perform that task. If an employer requires that a worker obtain a medical test or vaccination, the time associated with completing the medical test or vaccination, including any time traveling and waiting for the test or vaccination to be performed, would constitute time worked. However, unless otherwise required, the time spent waiting for COVID-19 test results is not compensable as hours worked, although the worker may be able to utilize paid leave while waiting for the results.
An employer cannot require the worker to utilize paid leave if the time is considered “hours worked” as referenced above.
If the time is not considered “hours worked,” the worker may be able to utilize the worker’s paid leave for time off from work to obtain testing or vaccination. Regular paid sick leave may be used for preventive care, which includes medical testing and vaccines, for the employee or the employee’s family members, and is protected against retaliation under the Labor Code.
II. Is my employer required to compensate me for the cost of a COVID-19 test or for the cost, if any, of getting a COVID-19 vaccination?
Yes, if an employer expressly requires an employee to obtain a COVID-19 test or a vaccination, or if the employee obtains the test or vaccination as a direct consequence of the employee’s discharge of the employee’s duties (i.e., the test or vaccination is effectively required for a job), the employer must pay for the costs of the test or vaccination as it is a reimbursement for necessary business expenses. If the employer requires a test or vaccination and there is no designated testing site, workers should ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.
If the testing or vaccination is performed at a location other than the employee’s ordinary worksite, the employee may also be entitled to reimbursement for necessary expenses incurred to travel to and from the testing or vaccination location.
III. What anti-retaliation protections apply to vaccinations?
The Department of Fair Employment and Housing (DFEH) enforces an anti-retaliation provision under the Government Code that protects employees seeking reasonable accommodations for a disability or sincerely-held religious belief or practice, among other protected activities. More information on this protection is available on DFEH’s website https://www.dfeh.ca.gov/.
Additionally, the Labor Commissioner’s Office enforces anti-retaliation protections that may apply to actions workers undertake in connection with getting vaccinated, such as using paid sick leave to get vaccinated. A list of laws under the Labor Commissioner enforces that generally prohibit retaliation is provided here.