DOL fact sheet on pay for COVID-19 vaccination, testing published 'in error'

Dive Brief:

The U.S. Department of Labor last week published "in error" a fact sheet addressing when employees must be compensated for time spent obtaining a COVID-19 vaccine dose, undergoing a COVID-19 test or engaging in a COVID-19 related health screening or temperature check, a DOL spokesperson confirmed in an email to HR Dive.
This interpretation of the Fair Labor Standards Act's requirements would have applied regardless of where one of these activities occurred and regardless of whether the employer is subject to the Occupational Safety and Health Administration's now-withdrawn emergency temporary standard, DOL said. It also would have applied to related activities that occur outside normal hours, if the activity is necessary for the work employees are paid to do. DOL gave the example of a healthcare worker who is required to put on and take off personal protective equipment before and after a work shift; such time would be compensable because it is necessary to the safe and effective performance of the workers' job, the agency said.
The rescinded fact sheet also stated employers would need to compensate employees who are subject to a mandatory vaccination policy, but who are unable to receive a vaccine and are entitled to reasonable accommodation under federal laws, for off-duty time spent undergoing testing, unless the employee voluntarily declined to be vaccinated and is able to receive a vaccine.

Dive Insight:

The guidance would have provided clarity to what has been a compliance gray area for employers, but DOL's decision to remove the fact sheet limits its utility.

Notably, it mentioned the now-withdrawn temporary vaccine-or-test mandate throughout; the rescission of the fact sheet presumably indicates that DOL reconsidered the guidance in light of that change, a Ford Harrison attorney wrote in a blog post for the firm.

Previously some state and local jurisdictions weighed in on whether employers are required to pay workers for COVID-19 related activities completed during work hours. Illinois, for example, announced in March 2021 guidance that time spent obtaining a vaccine required by an employer "is likely compensable, even if it is non-working time." Additionally, California employers must pay for the time it takes for employees to obtain a COVID-19 test or vaccine, including travel time, according to the state's Department of Industrial Relations.

And DOL still maintains FLSA guidance indicating that employers must pay workers for time spent performing certain tasks. In its COVID-19 and the Fair Labor Standards Act Questions and Answers, for example, the agency says that mandatory temperature checks and COVID-19 tests may be compensable.

November guidance from the Centers for Disease Control and Prevention encouraged employers to go a step further and consider paying for worker fares for taxis and rideshare services to off-site vaccination clinics. CDC also has said employers should offer flexible, non-punitive sick leave options to employees who experience symptoms after vaccination.