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  • Is COVID Testing and Vaccination Time “Hours Worked” in California?

    Over the past few weeks California employers have gained some clarity on the multitude of issues relating to COVID testing and vaccinations for the workforce.
    Can an Employer Require Vaccinations?

    On March 4th, the DFEH released updated guidance addressing questions concerning mandated vaccinations, essentially confirming that employers absolutely can require vaccinations – except when they can’t.  The guidance provides protections for individuals with disabilities or with strongly-held religious beliefs.  The vaccination section of the FAQs can be found here:  DFEH Employment Information on COVID-19 (ca.gov), beginning on page seven.

    Does an Employer Have to Pay?

    The California Labor Commissioner has now released updated guidance addressing questions related to what and when an employer will have to pay for testing or vaccinations.  The guidance is presented through three FAQs, and can be found here:  COVID-19 Testing and Vaccination.  Spoiler Alert – The determining factor is whether or not the employer “requires” employees to either get tested or get vaccinated.

    Employer-Required Testing and Vaccinations

    • When an employer is requiring employees to be tested or vaccinated:
    • The employer must pay for the time it takes for the testing or vaccination, including travel time
    • The time must be considered “hours worked,” and the time associated with completing the test or vaccination, including any time traveling and waiting for the test or vaccination to be performed, would constitute time worked
    • Time spent waiting for COVID-19 test results is not compensable as hours worked, although the worker may be able to utilize paid leave while waiting for the results.
    • The employee cannot be required to utilize paid leave if the time is considered “hours worked.”
    • If there are any costs for the test or vaccination, the employer must pay, as it is a reimbursement for necessary business expenses
    • If the testing or vaccination is performed at a location other than the employee’s ordinary worksite, the employer will also be required to reimburse for necessary expenses incurred to travel to and from the testing or vaccination location.

    Not-Required Testing and Vaccinations

    • If the employer is not requiring that employees be tested or vaccinated:
    • The worker may be able to utilize paid leave for time off from work to obtain testing or vaccination. 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.

    What is Next?

    We have heard from the DFEH regarding whether or not vaccinations can be mandated and we have heard from the Labor Commissioner regarding when it is necessary to pay an employee for activities relating to testing and vaccinations.  Next up will be Cal/OSHA, which is expected to update its guidelines to account for vaccinated employees in the workplace—this will be the official word on these topics.

    For anyone developing a formal Return to Work plan, you may want to delay a little until we have seen this guidance before making any hard decisions.

    Action Items

    It is definitely time for all employers to begin making a decision as to whether or not testing and/or vaccinations will be required.  This will eventually have to be a formal policy that should be in writing and adhered to by all employees and all of leadership.  There are far too many gray areas that could potentially create unnecessary liabilities for employers that do not communicate a consistent policy.

    COVID-19 Testing and Vaccine FAQs

    (1) Is my employer required to compensate me for the time spent obtaining a COVID-19 test or vaccination?

    If the employer requires an employee to obtain a COVID-19 test or vaccination (see Department of Fair Employment and Housing FAQs for guidance on the types of COVID-19 tests an employer may require and on vaccination), then the employer must pay for the time it takes for the testing or vaccination, including travel time.
    The employer must pay for the time it takes for testing or vaccination because such time would constitute “hours worked.” The term “hours worked” 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. However, unless otherwise required, the time spent waiting for COVID-19 test results is not compensable as hours worked, although the worker may be able to utilize paid leave while waiting for the results.

    An employer cannot require the worker to utilize paid leave if the time is considered “hours worked” as referenced above.

    If the time is not considered “hours worked,” the worker may be able to utilize the worker’s paid leave for time off from work to obtain testing or vaccination. 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.

    (2). 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. If the employer requires a test or vaccination and there is no designated testing site, workers should ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.

    If the testing or vaccination is performed at a location other than the employee’s ordinary worksite, the employee may also be entitled to reimbursement for necessary expenses incurred to travel to and from the testing or vaccination location.

    (3). What anti-retaliation protections apply to vaccinations?

    The Department of Fair Employment and Housing (DFEH) enforces an anti-retaliation provision under the Government Code that protects employees seeking reasonable accommodations for a disability or sincerely-held religious belief or practice, among other protected activities. More information on this protection is available on DFEH’s website https://www.dfeh.ca.gov/.

    Additionally, the Labor Commissioner’s Office enforces anti-retaliation protections that may apply to actions workers undertake in connection with getting vaccinated, such as using paid sick leave to get vaccinated.