With cases of the Delta Variant of COVID-19 increasing, many companies including Disney, Facebook, Google, Microsoft, and Walgreens are mandating their employees receive the vaccine before returning to work locations. However, there are points to consider, such as compensation, when making this decision.
Mandating employees to be vaccinated or have regular testing makes this requirement required for the job. This then places the vaccine mandate or testing for COVID-19 under the Fair Labor Standards Act (FLSA). The mandate falls under the definition of ‘hours worked’. The term ‘hours worked’ means the time during which a worker is subject to the control of an employer, and it includes all the time the worker is ‘suffered or permitted to work’.
Because of this, employers must pay non-exempt employees for the time spent undergoing testing or vaccination during the workday. This includes time waiting for and receiving medical attention according to the U.S Department of Labor. Additional state or local laws may also apply. In California, according to the California Department of Industrial Relations, “If the employer requires an employee to obtain a COVID-19 test or vaccination … then the employer must pay for the time it takes for the testing or vaccination, including travel time.” In addition, an employer cannot require the worker to utilize paid leave if the time is considered ‘hours worked’.
If an employee gets the vaccine or testing outside of their regular schedule, these are still considered ‘hours worked’. These hours may lead to overtime compensated at the ‘regular rate of pay’. If your company is offering a ‘vaccine bonus’ (dollars in addition to their regular compensation to get the vaccine), these dollars must be included to calculate their ‘regular rate of pay’.
In addition, in some states, the employer must pay for the costs of the test or vaccination as it is a reimbursement for necessary business expenses. Fortunately, the vaccine is still free for individuals across the country at most pharmacies. Location sites and appointments can be found at vaccines.gov. The U.S. Department of Health and Human Services has this resource listing free testing sites by state.
Finally, the American Rescue Plan Act of 2021 (ARP) allows small and midsize employers to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave to their employees due to COVID-19. This includes leave taken by employees to receive or recover from COVID-19 vaccinations. The ARP tax credits are available from April 1, 2021 through September 30, 2021 to eligible employers who pay sick and family leave for COVID-19 related reasons.
To learn how we can help your organization track COVID-19 related pay, contact Time Equipment Company at firstname.lastname@example.org or 800-997-8463.
*This information simplifies complex Acts as it is understood by Time Equipment Company. It is not to be taken as legal advice. The regulations for this program are changing. For further information contact the U.S. Department of Labor.