Are employer-required COVID-19 testing and vaccinations payable time?

As the COVID-19 pandemic continues to rage on, the Centers for Disease Control (CDC) and various government agencies have issued guidance on how to reduce transmission of the illness in various settings. On March 4, 2021, California’s Department of Fair Employment and Housing (DFEH) updated its guidelines to employers and employees regarding frequently asked questions (FAQs) about how to keep the workplaces safe while at the same time continuing to uphold civil and employment rights. Below are some of the FAQs obtained from both DFEH and dir.ca.gov edited for brevity:

 

1. May an employer require employees to submit to a medical test to detect the presence of the COVID-19 virus or antibodies to the virus before permitting employees to enter the workplace?

An employer may mandate a medical examination when it is “job-related and consistent with business necessity.” Employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace. Only viral testing may be required by employers and not antibody testing because an employee with COVID-19 is unable to perform the employee’s essential duties in a manner that would not endanger the health or safety of others in the workplace even with reasonable accommodation there. Thus, this medical examination is “job-related and consistent with business necessity.”

2. May an employer require its employees to be vaccinated against COVID-19?

 

An employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

 

1. Is the employer required to compensate the employee for the time spent obtaining an employer-mandated COVID-19 test or vaccination?

If the employer requires an employee to obtain a COVID-19 test or vaccination, then the employer must pay for the time it takes to undergo the testing or vaccination, including travel time.

Such time would constitute “hours worked,” which means the time during which a worker is subject to the control of an employer, and includes all the time the worker is suffered or permitted to work, whether or not required to do so. Under this definition, one way to determine whether time a worker spends performing a task must be paid as time worked is whether the employer exercised control over the worker by requiring the worker to perform that task. If an employer requires that a worker obtain a medical test or vaccination, the time associated with completing the medical test or vaccination, including any time traveling and waiting for the test or vaccination to be performed, would constitute time worked.

An employer cannot require the worker to utilize paid leave if the time is considered “hours worked. Regular paid sick leave may be used for preventive care, which includes medical testing and vaccines, for the employee or the employee’s family members, and is protected against retaliation under the Labor Code.

1. Is my employer required to compensate me for the cost of a COVID-19 test or for the cost, if any, of getting a COVID-19 vaccination?

Yes, if an employer expressly requires an employee to obtain a COVID-19 test or a vaccination, or if the employee obtains the test or vaccination as a direct consequence of the employee’s discharge of the employee’s duties (i.e., the test or vaccination is effectively required for a job), the employer must pay for the costs of the test or vaccination as it is a reimbursement for necessary business expenses.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

Don't miss out on the latest news and information.

MOST READ

DID YOU KNOW?