Wage & Hour Update: Employer-Mandated COVID-19 Test or Vaccination Counts as Paid Time

California workers who are required by their employer to obtain a COVID-19 test or vaccine must be compensated for their time.  This is a welcome development in the context of an employer mandate, given how exhausting and time-consuming testing and (especially) vaccination can be.

The Department of Fair Employment & Housing (DFEH) has previously explained that California employers can require workers to obtain the COVID-19 vaccine, or show proof of a negative COVID-19 test, as a condition of employment.  While any such requirement is subject to reasonable accommodation on the basis of disability or good faith religious objection, employers are within their rights to force workers to get vaccinated—even when the employer is unable or unwilling to provide vaccinations at the worksite.  This leads to an obvious question: if an employer institutes a COVID-19 test or vaccination requirement, is the employer obligated to pay its employees for time spent obtaining the test or vaccine?  According to the California Labor Commissioner’s Office, the answer is unequivocally yes.

In a FAQ posted on March 16, 2021, the Labor Commissioner clarified that if an 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.  This time qualifies as “hours worked,” because the worker is still under the control of the employer.

To summarize, if an employer requires a test or vaccine as a condition of employment, the employer must pay its workers for their time.  This includes any time traveling and waiting for the test or vaccination to be performed, as well as any costs associated with the test or vaccination, which now qualify as “necessary business expenses” under Labor Code section 2802.  If an employer does not require a test or vaccination as a condition of employment, but a worker wants to obtain one anyway, the employer is not required to cover the costs.  However, as an alternative, workers can take advantage of California’s newly expanded COVID-19 Supplemental Paid Sick Leave (CPSL) program, which “provides leave for attending a vaccine appointment or if the worker has to miss work because of a reaction to the vaccine.”

If you have any questions about this new wage and hour law development, or if an employer is refusing to reimburse workers for mandatory COVID-19 tests and vaccinations, please reach out to your regular Union attorney.

By Will Hanley | June 30, 2021

Legal Developments