As We Watch for OSHA’s COVID Vaccine Mandate Guidance, Don’t Forget Applicable Wage and Hour Rules

By Michael Burns, courtesy of SBAM Approved Partner ASE

As we wait for the OSHA guidance detailing how employers (over 100 in employment) can implement mandated vaccination for employees, employers need to keep in mind how they require vaccination and testing may impact proper pay for non-exempt employees.

How should employers compensate non-exempt employees if:

The answer to each of these scenarios depends (as attorneys always say). The following is a summary of responses to these questions.

Do I have to pay a non-exempt employee if vaccination or testing is required during the normal workday? 

In most cases, the simple answer is yes. This would be under the “continuous workday” rule. (29 CFR Sec. 785.19). This is also confirmed by the Department of Labor’s (DOL) and FLSA COVID-19 Q&A #5.

Do I have to pay for vaccination or testing if I require this to be done before the workday begins or after the workday ends?

This revolves around the compensability of time spent in “preliminary or postliminary” activities. This issue has been the subject to a lot of litigation often seen around the activity of donning and doffing of protective gear and equipment. Courts and the DOL have used the general criteria of whether the activity before or after the workday was an “integral and indispensable part of the worker’s principal activities” that cannot be dispensed with to do the job. The DOL’s guidance to this question is (ready for it?):

“It depends[.]  [U]nder the FLSA, your employer is required to pay you for all hours that you work, including for time before you begin your normal working hours if the task that you are required to perform is necessary  [italics added] for the work you do.  For many employees, undergoing a temperature check before they begin work must be paid because it is necessary for their jobs.  For example, if a nurse who performs direct patient care services at a hospital is required to check her temperature upon arrival at the hospital before her shift, the time that she spends checking her temperature upon entry to the worksite is likely compensable because such a task is necessary for her to safely and effectively perform her job during the pandemic.  In other words, the temperature check is integral and indispensable to the nurse’s job.” Q&A #4

This response addresses temperature taking which is arguably comparable to other COVID testing. The question would be, “is the testing necessary for some or all of the workers to do their jobs?” The employer will be put in the situation of arguing the testing or vaccinations activity is integral and indispensable to the job. In a medical facility the argument can be made that testing and vaccination (for patient and other’s safety) are necessary. In a work environment, such as an office, the necessary requirement is not as readily apparent. The last step in this questionable situation is to make an analysis of whether testing or vaccination is integral and indispensable to the worker’s principal job duties.

Do I have to compensate an employee for testing or vaccination on a day off (weekend or other non-working day)?

The DOL’s COVID-19 guidance states (and yes again it depends):

“It depends[.]  [U]nder the FLSA, your employer is required to pay you for all hours that you work, including for time on your vacation day if the task you are required  [italics added] to perform is necessary for the work you are paid to do.  For 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.  Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.” Q&A #8

Once again, the DOL guidance looks at whether the health screening or vaccination requirement can be shown to be “integral and indispensable” to the job. This is easier said than determinative and is fact driven.

Where mandatory vaccination and/or health screening is required by the employers this would meet one prong of the test. But is the vaccination or testing being done “pursued…primarily for the benefit of the employer and its business?” Arguably both parties benefit from the vaccination or testing requirement. A stronger case may be made that the employee benefits more.

This question is open and will certainly be brought about with the DOL and the courts in the coming months and years.

The attorneys at Proskauer law firm advise in their informative blog on these questions; the agency investigating a failure to pay for such activities would “lean toward finding them compensable.” They go on to advise, “Businesses that are risk averse, or simply want to avoid the possibility of employee complaints and /or a DOL investigation, may elect to pay for time spent in vaccination, testing, or screening activities. Businesses that decide not to pay overtime [non-exempt] eligible employees for vaccination, testing or screening outside of the regular working hours should be prepared to defend the decision in what may be a case of first impression in their jurisdiction.”  (Do We Have to Pay for That? Part 1 – COVID -19 Vaccination, Testing and Screening Activities Allen Bloom [author] 10/18/2021.)

The Proskauer blog warns to also check the law in the state your employees are in. The above compliance information is pretty applicable for Michigan employees, but if you have employees in New York or California their laws address this specifically and a bit differently.

Keep an eye out for the impending OSHA Emergency Temporary Standards that will support the already announced vaccination mandate. We expect them out anytime.