Here’s Where We Are With Vaccine and Testing Requirements in the Workplace…

A day is coming when I no longer write about how COVID impacts work. That day is not today. 

Oh, how I wish it were. There was a time, believe it or not, when I used to write about overtime rules, and harassment, and Christmas parties. Just not lately. And not today.

Today I want to talk about yet another Department of Labor rule regarding vaccines and testing and payment at work. There seems to be a never-ending and contradictory flow of these rules from week-to-week as the government continues to stumble its way through addressing a pandemic that shows no signs of stumbling itself. 

Last week the DOL published a Fact Sheet, Number 84 for those of you scoring at home, titled Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA). 

As an aside, I want to take a moment to thank the Department of Labor for keeping me in business and my services in high demand during this pandemic. 

Shortly after publishing the fact sheet though, the DOL then pulled the fact sheet. So whether it currently applies is anybody’s guess. Still, you should probably know what it said so that you can have some guidance on these sticky issues over the next few weeks. 

The gist of the rule is that if an employee is required by his employer to undergo some type of Covid-related test or screening while at work, such as getting a vaccine or a test, then the employer has to pay the employee for the time spent doing so. This is true even if the test or screening takes place off site, but during normal working hours. 

So if the employer tells the employee to go down to the walk-in center to get a test because of possible exposure, the time spent doing so must be paid. This is probably true if the requirement takes place after normal working hours although the DOL is not explicit on this issue. It stands to reason though if the activity is mandated by an employer and is work-related, then it should be paid. 

There is an exception though for employees who have to test after “voluntarily” choosing not be vaccinated. In that scenario, the DOL would not mandate the employee to be paid for time spent getting tested. A “voluntary” choice to not receive a vaccine is one where the employee has not obtained a medical or religious exemption from the vaccine. 

Currently lots of employers are trying to figure out what to do next after the Supreme Court last week decided that OSHA did not have authority to issue a federal vaccination mandate to employees who work for large companies employing more than one hundred employees. 

I would suggest that the Supreme Court did everyone a favor because from what I have seen the folks who are against vaccines were not going to be coerced into getting them. And that would have resulted in tens of thousands of jobs going unfilled if termination resulted from a vaccine refusal. 

In the meantime, I hope folks voluntarily opt in to the vaccine. From my perspective it works. But I have rarely seen an instance where forcing an adult to do something against their wishes turned out so well.  

Eric Brown is an attorney with offices in Connecticut. He can be reached at 888-579-4222 or online at http://www.thelaborlawyer.com

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