Hall Render recently published articles (see here and here) on OSHA’s Emergency Temporary Standard (“ETS”), which includes requirements that apply specifically to health care employers. Implementation of those standards will involve some or many employees in tasks related to COVID-19 safety at the beginning and end of their shifts, including screening and donning/doffing protective equipment. Employees may also spend time on COVID-19 training and getting vaccinated. Clients have asked whether employees must be paid for time spent completing COVID-19-related tasks under the ETS.
While the ETS does not resolve this question, the Department of Labor has published COVID-19 Fair Labor Standards Act guidance for employers that should be considered.
Mandatory Temperature Check Onsite
Time spent waiting for and undergoing a temperature check at the worksite must be paid.
Mandatory Temperature Check Before Entering the Job Site
Some employers require employees to take their own temperature before entering the job site. Does the employer have to pay for time spent taking one’s own temperature?
The DOL says that if a temperature check is necessary for those involved in direct patient care for them to safely and effectively perform their jobs during the pandemic, the time for the temperature check must be paid.
If employees are required to complete a health screening during the workday, the employer must pay that time. “All time between the start and finish of an employee’s workday must be paid unless it falls within one of the exceptions stated in 29 C.F.R. Part 785, such as bona fide meal breaks and off-duty time.”
An employer that requires COVID-19 testing during the workday must pay for the time spent by employees to undergo the testing.
Donning and Doffing Personal Protective Equipment
For an employee in a hospital with direct patient care responsibilities, the time spent to put on (“don”) and take off (“doff”) COVID-19 protective and safety gear, such as an N95 respirator, eye protection and a face shield, before the shift starts and after the shift ends is compensable.
Mandatory COVID-19 Training
The ETS requires covered health care employers to provide training to employees on COVID-19 and employer-specific policies and procedures, including additional training whenever certain changes are made, such as new job duties. Employees must be paid for time spent participating in such mandatory training.
Time for Vaccination
Employers are required to support COVID-19 vaccination for each employee by providing 1) paid leave and 2) reasonable time for vaccination and any side effects experienced from vaccination.
Paid leave may include paid sick leave or administrative leave. The paid leave can be an employee’s accrued sick leave, if available, or additional paid leave provided by the employer for this purpose.
Reasonable time includes, at least, time spent during work hours related to the vaccination appointments – registering, completing paperwork, travel time and time spent at the vaccination site.
Employers may place a reasonable cap on the amount of time and paid leave available to employees to receive each dose of the vaccine and to recover from any side effects. OSHA presumes that 4 hours of paid leave for each dose of the vaccine, as well as up to 16 additional hours of leave for any side effects of the dose(s) (or 8 hours per dose) is reasonable. That presumption of reasonableness could change, however, under unique circumstances.
An employee who chooses to receive the vaccine outside of work hours is not entitled to paid leave but is still entitled to reasonable time and paid leave to recover from any side effects that they experience during scheduled work time.
The general rule is that time spent by employees complying with safety practices related to the pandemic must be compensated. Employees are also entitled to paid time and leave for vaccination. Of course, each state may have more nuanced and specific regulations that go beyond the requirements of the FLSA set forth by the Department of Labor. Be sure to be aware of that possibility and reach out to your Hall Render attorney for state-specific guidance.