As discussed in my last post on the issue of vaccines, the Equal Opportunity Employment Commission since confirmed that employers can mandate vaccinations. As companies begin to assess their vaccination policies, it is important to keep in mind the seemingly ancillary issues that go along with such policies. Once a company determines its position on whether to mandate the vaccine, the next step is to assess the logistics of what the implementation of that policy looks like.
TIME SPENT WAITING AND OBTAINING THE VACCINE
Employers that mandate the vaccine must keep in mind the Fair Labor Standards Act (“FLSA”) and their state-specific laws. The FLSA regulations are clear that when an employer directs an employee to receive medical attention during normal working hours, then that employee must be compensated. The actual language of the regulation is clear:
Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when [they] are working constitutes hours worked.
For the purposes of this blog, we will focus on the state-specific laws for the Commonwealth of Pennsylvania. For PA employers, the Code for the Pennsylvania Minimum Wage Act explains that “hours worked” includes the time during which an employee is required by the employer to (1) be on the premises of the employer, (2) be on duty, (3) be at the prescribed workplace, (4) time spent traveling as part of duties of the employee during normal working hours, and (5) time during which an employee is employed or permitted to work.
It follows that if an employer requires its employees to get the COVID-19 vaccine during normal working hours, the employer must compensate the employee for the time spent waiting and getting the vaccine.
Let’s look at an example:
- EXAMPLE: Let’s say there is an hourly non-exempt employee who works full-time Monday through Friday. After much investigation and research, the only time the employee can get an appointment for the vaccine is Saturday morning. If the employer mandates the vaccine, does the employer have to pay this employee for the time spent getting the vaccine? Based on the Fair Labor Standards Act, it does not appear that the employer is required to pay the employee for the time spent waiting for the test. After all, it is not within the normal working hours. The same seems to be true in Pennsylvania. The recent FAQ from the Pennsylvania Office of Unemployment Compensation reads, “[t]ime spent undergoing a medical examination during a day you are off work is not compensable.”
If the employee obtained the vaccine Monday-Friday, then there would be no question that the business must compensate the employee for the time spent waiting for the vaccine and getting the vaccine.
NOTE: There is a glaring contradiction in this FAQ. First, as discussed in my previous blog, the EEOC explained that a COVID-19 test is not a medical examination for the purposes of the Americans with Disability Act. However, the PA Unemployment Compensation Office alludes to the fact that in Pennsylvania, on the state level, a COVID-19 test is considered a Medical Examination.
What about Costs relating to Getting the Vaccine?
- Parking? Mileage? As we know, getting the vaccine has been cumbersome at best. In order to get the vaccine, some employees may have to travel far or incur expenses such as parking. Are employers responsible for paying for mileage and parking? The answer is…maybe. Under the FLSA, the employer must reimburse employees to the extent those expenses would reduce an employee’s pay below the minimum wage. In other words, if the costs associated with getting the vaccine would reduce the employee’s wage to below the minimum wage, then the employer must reimburse these costs.
What About Paying for the Actual Vaccine?
At the federal level, there has been no definitive guidance on this issue. However, Pennsylvania employers MUST review the Medical Pay Law (“MPL”).
Let’s talk about Pennsylvania….
According to the PA Office of Unemployment Compensation, employers who mandate the COVID-19 vaccine for employees MUST pay for that COVID-19 test. In an effort to keep things super clear, here is the direct excerpt from the FAQ:
Employers should be aware that the PA Medical Pay Law states that if an employer requires an employee to undergo a medical examination, including a COVID-19 test, in order to continue working, then the employer is responsible for paying for that examination unless another statute requires that examination as a condition of employment.
Again, Pennsylvania’s designation of a COVID-19 test as a medical examination contradicts the EEOC’s position; however, employers in the Commonwealth cannot ignore this law. Under the MPL, an “Employer” is any individual or company doing business or operating within the Commonwealth. An “Employee” is any person who “may be permitted, required or directed by any employer…in consideration of direct, game or profit, to engage in any employment.”
The MPL explicitly directs that it is unlawful for an employer to require an Employee or Applicant to pay the cost of a medical examination or the cost of furnishing medical records as a condition of employment. The MPL furthers that it is unlawful to require an employee to pay if the employee/application works for the employer for one week. Employers should consult with counsel to confirm the ramifications of this “one-week” caveat.
NOTE: PA employers do not have to pay for vaccines when a vaccine is required for the job under some other state or federal law as a condition of employment. Employers should consult with counsel on this issue.
So What Does This Mean for Pennsylvania Employers?
If a company conducts business in Pennsylvania and mandates that all employees and future employees get vaccinated, the business must: (1) Pay for the cost of getting the vaccine and (2) compensate the employees for the time spent waiting and obtaining the vaccine.
Employers should consult with counsel to ensure and confirm not only that their vaccination policies are compliant but that the actual implementation of the policy is lawful.
ABOUT SUSIE CIRILLI
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
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