DOL issues Fact Sheet 84 explaining compensability of time related to CV19-related vaccines, testing, temperature checks, etc.

The DOL issued a new Fact Sheet (#84) explaining when time must be paid related to coronavirus-related vaccinations, testing, temperature checks, etc.

Time must be compensated if the activity was required by the employer; it need not be compensated if it was at the option of the employee. Time that must be compensated counts as hours worked, including towards overtime.

Examples of time that must be compensated include:

• Time an employee spends getting vaccinated if the employer has a policy that mandates vaccination.
• Time an employee spends getting a COVID-19 test if required by the employer.
• Time an employee spends to have their temperature checked if required by the employer.

The DOL says that not only must the employer pay such time but it must allow such time “during normal working hours” generally and when that is not possible, it will count as hours worked, in other words, towards any overtime.

Examples of time that need not be compensated include:

• Time an employee spends being tested in lieu of being vaccinated where the employee has opted not to be tested, even if the test is required under a vax-or-test policy adopted by the company (including for example if adopted under the now-frozen OSHA ETS).
  • The same time even if the employee has qualified for an accommodation exempting the employee from testing, for example on religious or disability ground is being tested even if the employer.
• Time an employee spends getting vaccinated, unless the employer has a policy that mandates vaccination, even if the employee is doing so at the encouragement of the employer.
  • The same time even if the employee is doing so solely because they wish to avoid the hassle of not being vaccinated under an employer’s policy (including for example under the kind of policy required under the now-frozen OSHA ETS).