Even though the calendar has not even turned to February, we already have seen major updates on the federal government’s COVID-19 rules and guidance. This past week proved no different. On Friday, January 21, 2022, a Texas federal judge blocked, on a nationwide basis, President Biden’s executive order mandating that federal workers get a COVID-19 vaccine. The Justice Department already appealed the injunction and only time will tell how that mandate is resolved.
Also on Friday, January 21, the Department of Labor (“DoL”) issued Fact Sheet #84, which addressed the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations under the Fair Labor Standards Act. In particular, the Fact Sheet gave advice concerning the following circumstances:
- Activities Occurring During Normal Working Hours: The DoL first clarified that health and safety measures that occur during normal working hours are compensable and stated: [I]f an employer requires an employee to obtain a COVID-19 vaccine dose, undergo a COVID-19 test, or engage in a COVID-19 related health screening or temperature check during the employee’s normal working hours, the time that the employee spends engaged in the activity is compensable.
- Activities Outside of Normal Working Hours: The DoL also addressed whether time spent undergoing health and safety measures outside of normal working hours – such as getting vaccinated – is compensable. In particular, the Fact Sheet stated that: Employers must pay employees who report to a workplace where other individuals are present and who do not work exclusively outdoors for time spent going to, waiting for, and obtaining a mandatory COVID-19 vaccine dose because it is necessary that employees be able to perform their jobs safely and effectively during the pandemic
- Compensation for Time Spent Testing: Finally, the DoL also addressed whether time spent undergoing testing is compensable. Where an employer mandates the vaccine and an employee undergoes testing as a reasonable accommodation based upon a religious or medical exemption, time spent undergoing testing outside of normal working hours is compensable. However, where an employee can provide regular proof of testing as an alternative to getting vaccinated, the employer does not have to pay for time spent undergoing testing.
Later that same day, the DoL withdrew Fact Sheet #84 (likely because it is rife with references to the OSHA ETS). Since it was withdrawn, the Fact Sheet should be considered unofficial. However, it’s substantive and useful guidance concerning the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations should not be ignored.
Finally, effective Wednesday, January 26, 2022, OSHA officially withdrew its ETS regarding COVID-19 vaccination and testing requirements. In doing so, OSHA stated that it plans to implement a “permanent COVID-19 Healthcare Standard.” In its decision, the Supreme Court had said that OSHA has the power to regulate risks related to COVID-19 that are “occupation specific” based on a worker’s job or workplace. This gave OSHA an avenue to issue a narrower rule and likely is what OSHA will pursue in a “permanent COVID-19 Healthcare Standard.”
Frantz Ward will continue to monitor developments as it relates to administrative rules, regulations, and guidance concerning the COVID-19 pandemic. If you have questions about this or other Labor and Employment issues, please contact Andrew Cleves or another member of the Frantz Ward Labor and Employment Practice Group.