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Wary of wage and hour class actions, many employers have been grappling with whether and how to compensate employees for activities related to COVID-19. After nearly two years of guessing, on January 20, 2022, the US Department of Labor (DOL) posted Fact Sheet #84, “Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA),” on its website. The next day, and with no explanation, Fact Sheet #84 disappeared.

Before it disappeared, Fact Sheet #84 addressed the compensability of time spent undergoing those COVID-19 activities with reference to the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS). Given that the OSHA ETS had been stayed just a week earlier by the US Supreme Court and then was subsequently withdrawn by OSHA on January 26, Fact Sheet #84’s sudden disappearance is perhaps not surprising. Nevertheless, employers should keep their eyes peeled for an updated Fact Sheet #84 that addresses compensability of testing and vaccination time without references to the OSHA ETS, especially since the advice in the now withdrawn Fact Sheet #84 is in line with other prior DOL advice on compensable time for employer-required testing and medical procedures under the FLSA.

What Fact Sheet #84 Said Before It Was Withdrawn

The guidance in Fact Sheet #84 distinguished between testing and vaccination that occurs during regular work hours and after regular hours:

Activities that occur during normal working hours

  • Under the FLSA, employer-required activities during normal working hours are compensable, unless the activity falls within one of the exceptions stated in 29 C.F.R. Part 785 (e.g., bona fide meal breaks and off-duty time).
  • Employees must be paid for time they spend going to, waiting for, and receiving medical attention required by the employer or on the employer’s premises during normal working hours-including COVID-19 related medical attention. Therefore, if an employer requires an employee to engage in COVID-19 activities (such as receiving a COVID-19 vaccine dose, taking a COVID-19 test, or undergoing a COVID-19 health screening or temperature check) during the employee’s normal working hours, the time is compensable time-regardless of where the activity occurs.

Activities that occur outside of normal working hours

  • Under the FLSA, employers are required to pay employees for all hours worked, including for time outside of normal working hours if the task the employee is required to perform is necessary for the work they are paid to do.
  • Generally, time spent engaged in employer-required activities that are necessary for an employee to safely and effectively perform their job-such as donning and doffing of PPE prior to and after a shift to protect a health care worker from COVID-19-are “integral and indispensable” to an employee’s work and therefore must be paid.
  • Where an employer has a mandatory COVID-19 vaccination policy, but an employee cannot receive the vaccine (for religious or disability / medical reasons) and is entitled to a reasonable accommodation under federal civil rights laws, the time the employee spends undergoing regular employer-required COVID-19 testing outside of normal working hours (so they can perform their jobs safely during the pandemic) is “integral and indispensable” to the employee’s work and is compensable.
  • When an employer has a policy allowing employees to either be vaccinated or to test regularly, and an employee is able to receive the COVID-19 vaccine but voluntarily declines to be vaccinated, the employer is not required to pay the employee for time spent undergoing regular COVID-19 testing. Given the better protection provided by the COVID-19 vaccine (which is free, widely available, and compensable time to be paid by the employer), time spent undergoing COVID-19 testing outside of normal working hours is not “integral and indispensable” to that employee’s job. [Note: the viability of this particular guidance is questionable given the withdrawal of the OSHA ETS on which it is premised].
  • A critical factor in determining whether time spent in an activity outside of normal working hours is compensable is whether the activity is required by the employer and is necessary for the employee to perform the job. Where employers do not require vaccination or testing, engaging in those activities outside of normal working hours is generally not compensable because they are not required by the employer.

Fact Sheet #84 aligns with some prior DOL guidance that forecasts the DOL’s position on compensability of COVID-19 activities. For instance, a 1997 opinion letter by the DOL’s Wage and Hour Division states, “[A]ttendance by an employee at a meeting during or outside of working hours for the purpose of submitting to a mandatory drug test imposed by the employer would constitute hours worked for FLSA purposes, as would attendance at a licensing physical examination during or outside of normal working hours.”

In addition, the DOL’s COVID-19 Q&As, published in 2020, are in line with Fact Sheet #84. The DOL has advised that “[f]or 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.” (See COVID-19 and the Fair Labor Standards Act Questions and Answers, Q&A #8). See also Q&A #7  (stating that employers requiring employees to take COVID-19 tests during the workday must pay employees for time spent undergoing the testing).

Key Takeaways

  • Employers should keep an eye out for additional DOL guidance on this issue-which may come in the form of another Fact Sheet (and without the references to the OSHA ETS).
  • Employers should align their pay practices to any COVID-specific DOL guidance on compensability of COVID-19 activities (such as the guidance in the DOL’s COVID-19 Q&As).
  • Employers should not forget applicable state and local laws or guidance regarding compensability of COVID-19 activities. Some require employers to compensate employees for testing and vaccination time, among other COVID-19 activities (such as “exclusion pay”).
  • Employers should keep in mind this area is ripe for employee class actions. Hundreds of wage and hour class actions have been filed since the beginning of the pandemic, including allegations that employees were not properly compensated for time spent engaged in COVID-19 activities such as waiting in line for and undergoing temperature checks and health screenings, and waiting for rapid COVID-19 test results. Employers should consult with counsel to determine whether they need to modify pay policies for COVID-19 activities, and whether they should consider streamlining the process of some of their screening or testing activities.

For assistance with compensability of COVID-19-related activities and other employment matters, contact your Baker McKenzie employment attorney.