Many employers – such as United Airlines, Tyson Foods, Google, and the federal government – have decided to make the COVID-19 vaccine a condition of employment. Other employers have opted for a gentler approach: all employees must either be vaccinated or produce negative COVID-19 tests on a regular basis.
We previously blogged about an emerging trend in wage and hour litigation surrounding mandatory temperature checks for employees. Mandatory COVID-19 testing policies are likely to spark similar litigation. Specifically, employers need to know whether their employees are entitled to compensation for time spent waiting for, and receiving, COVID-19 tests. As we previously blogged, The Supreme Court has said that only “principal activities” are compensable under the Fair Labor Standards Act (FLSA), which are defined as those activities that an employee is employed to perform, including all activities which are an integral part of their principal activities. Under this definition, an employer may be obligated to pay an employee for time spent performing activities outside of their regular shift times – such as getting a COVID-19 test.
According to guidance from the Department of Labor, certain employees may be entitled to compensation, while others may not. If an employee’s job requires significant face-to-face interaction (e.g., a grocery store cashier), then COVID-19 testing may be considered a “principal activity.” A desk worker who has their own office, on the other hand, may not be entitled to compensation for mandatory testing.
Employers should also consider conducting testing onsite during work hours. Under the FLSA, non-exempt employees must be paid for all hours they work, and therefore timekeeping issues might arise if employees are left to get tested during their own personal time. These timekeeping issues can be avoided if testing is done onsite at the beginning of an employee’s shift.