Employers have been guessing for many, many months as to whether time spent by employees getting COVID-19 vaccines or tests is compensable. A Fact Sheet published by the Department of Labor (“DOL”) on January 20, 2022, has been broken the DOL’s silence on the issue.

According to the DOL, the primary issues to consider in determining whether the time employees spend getting vaccinated or tested is driven by two issues: 1) when the activity occurs; and 2) whether the activity is due to a vaccine mandate versus a vaccine/test option. Importantly, these issues are only of concern with respect to nonexempt employees. The issue of what work time is compensable is not relevant for exempt employees.

Vaccinations/Testing During the Regular Workday

Under the federal Fair Labor Standards Act (“FLSA”), any work activity occurring between the start and finish of the employee’s workday is generally compensable. In this regard, the DOL advises:

[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.

The key to this issue is when the activity is required to occur. If the employer mandates that it occur during normal working hours, the DOL states that ends the analysis, i.e., the time is compensable and the time spent constitute hours work for overtime calculation purposes. This is true regardless of the employee engaging in these activities on or off the worksite.

Temperature Checks

According to the DOL, the above analysis applies to temperature checks occurring after employees start work for the day as well. This caveat is important to note in that suggests that the time needed for temperature checks occurring before the start of the day is not compensable. At least on this issue, the DOL is of the opinion that temperature checks are not integral and indispensable to employees’ primary duties.

What is perhaps still to be resolved on this issue is whether this caveat applies to all workplaces or just most workplaces. For instance, the issue may not be resolved for certain healthcare workers.

Vaccinations/Testing Outside the Normal Workday

Some employees cannot get vaccinated or tested during normal working hours. According to the DOL, the compensability of this time depends on whether the employer has a vaccine mandate or provides employees with vaccine/testing options.

  • Employers with Vaccination Mandates

For employers who have adopted vaccine mandates, the DOL views the vaccine as being “integral and indispensable” to the employees’ jobs. Therefore, for employees who are unable to get the vaccination shots during their regular workday, the time they spend doing so outside of those hours, including weekends, is compensable.

Further, in light of the duty to accommodate employees who cannot be vaccinated due to medical/disability concerns or sincerely held religious beliefs by allowing them to be regularly tested, instead, the DOL asserts that the testing activity is also compensable work time.

  • Employers with Vaccination or Testing Options

For employers who give employees the option of being vaccinated or regularly tested, though, the outcome is different. Under this scenario, the DOL concludes, any time for testing outside of normal working hours is not compensable. In its Fact Sheet, the DOL explains:

In such a situation, where the employee could receive the vaccine but chooses to remain unvaccinated, the time that the employee spends undergoing testing outside of normal working hours is not “integral and indispensable” to that employee’s job. In this circumstance, regular COVID-19 testing is not “integral and indispensable” because the Federal Government has determined that employees who can be vaccinated are better protected by the COVID-19 vaccine than by a COVID-19 test; the vaccine is free and widely available; and the time spent receiving the vaccine would be paid by the employer. Where all of these factors exist, the FLSA would not require employers to pay for time that employees spend in undergoing the more costly, less efficient, and less protective option of regular COVID-19 testing outside of normal working hours.

The DOL does not clearly explain why the time taken by employees under a vaccine or regular test option is compensable, that appears to be its position. This distinction will likely be fodder for closer legal scrutiny.

Takeaways

This DOL guidance provides the DOL’s views on these issues. Whether or not the courts agree will be determined later. There are already some cases afoot grappling with these issues. There is room to challenge the DOL’s conclusions particularly in light of the Supreme Court’s 2014 holding in Integrity Staffing Solutions, Inc. v. Busk and that not all ADA and religious accommodations are paid by employers.

Meanwhile, the safest course is to conform to the guidance. Doing so may not be a challenge for many employers since many already provide paid time for these activities, at least to a certain extent. Other employers may prefer to reconsider any vaccine mandate they have put in place and opt for the plan that seems to eliminate the compensability for testing under any circumstance. Which way to go is nuanced and may depend on whether the testing can be done during regular hours and how many may employees require an accommodation for testing after regular hours.

Importantly, the time at issue is not just the time needed for the actual administration of the shots or tests. The time at issue includes the time undertaken to travel to and from the vaccination or test location, including waiting time.

In addition, employers must still conform to any state or local wage and hour rule that may require that time taken for vaccinations and tests be compensated. The guidance only relates to DOL’s view of compensability under the federal Fair Labor Standards Act.