Mandatory Vaccination/Testing for Certain Employers
Per the Executive Order:
The rule will require all employers with more than 100 or more employees to ensure that their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
This Rule will be issued in the form of an Emergency Temporary Standard.
Mandatory Paid-Time-Off for Certain Employers
The Executive Order goes even further announcing that OSHA will also be issuing another Emergency Temporary Standard that requires employers with more than 100 employees to provide paid-time off for the time it takes for workers to get vaccinated or the recover if they under the weather post-vaccination.
Who Pays for this Testing?
While we must wait for OSHA to issue the Emergency Temporary Standards, employers must prepare for the issues relating to testing for those employees who choose not to get vaccinated or those who cannot get vaccinated due to a disability or religious exemption.
The Department of Labor put out an FAQ to assist employers on the issue of whether they are responsible for paying for testing. However, as you will see, the DOL issues a definitive answer for some scenarios and offers vague guidance for others. Let’s dig a bit deeper…
When an Employer Requires COVID-19 Testing During the Workday
This is a fairly clear cut scenario. The DOL offers a clear answer stating that, “under the FLSA [employers are] required to pay…for time spent waiting for and receiving medical attention at [the employer’s] direction or on [the employer’s] premises during normal working hours.” (See FLSA FAQ #7).
This is super interesting. It is worth noting that the DOL refers to a COVID-19 test as “medical attention” under the FLSA. Why is this important?
The Federal Regulations are cut and dry: If an employer directs an employee to receive “medical attention” during normal working hours, then that is considered “hours worked” under the FLSA.
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 day s when [they] are working constitutes hours worked.
It is worth noting that the Pennsylvania Minimum Wage Act mirrors the federal law. Employers must confirm the local wage and hour laws where they do business.
That scenario is fairly clear. Let’s look at the second scenario…
An Employer Requires the Employee to Undergo COVID-19 Testing on an Employee’s Day Off Before they can Return to the Jobsite
The DOL does NOT provide a clear answer. (See DOL FAQ #8) In fact, they actually say, “it depends…” Let’s break down the DOL’s guidance and what it means for employers:
FIRST: The DOL reiterates that the FLSA requires employees to be paid for all hours worked. This is the crux of the FLSA.
SECOND: The DOL says that undergoing COVID-19 testing, “may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic.”
It will be interesting to see if OSHA and the DOL clarify this topic. Prudent employers should consult with counsel regarding this issue.
Again, OSHA will issue the standards and hopefully a little more guidance. At this juncture it is unclear whether this mandate applies to remote workers. In other words, if an employer with 100 or more employers has a completely remote work force, do those employees still have to be fully-vaccinated or submit to testing? The wording of the executive order seems to be targeted to in-person workers. However, it is unclear at this time.
This is certainly an interesting time. As with anything during this pandemic, we will continue to keep employers updated as regulations and rules are issued.
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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