UPDATE: On January 13, 2022, the U.S. Supreme Court granted applications to stay OSHA’s Emergency Temporary Standard pending review on the merits by the Sixth Circuit, and if writs of certiorari are subsequently sought to the U.S. Supreme Court, pending the Court’s disposition of such writs.  Click here to read more about the Court’s decision.  On January 25, 2022, OSHA filed a notice withdrawing the Emergency Temporary Standard apart from the extent it serves as a proposed rule under the OSH Act.  For more details, click here.

The new federal rule requiring employers with 100 or more employees to mandate that their workers be vaccinated or undergo weekly testing takes effect on January 4, 2022.  Check out our blog on the rule in its entirety.

Here are the wage and hour implications of the new rule, issued as an Emergency Temporary Standard by the Occupational Health and Safety Administration (OSHA):

Vaccination

Under new 29 C.F.R. § 1910.501(f), covered employers must provide each employee a reasonable amount of paid time up to four hours (including travel time) for each of their primary vaccination dose(s), at the employee’s regular rate of pay.  In addition, employers must provide employees with reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose.

As the preamble explains:

Reasonable time may include, but is not limited to, time spent during work hours related to the vaccination appointment(s), such as registering, completing required paperwork, all time spent at the vaccination site (e.g., receiving the vaccination dose, post-vaccination monitoring by the vaccine provider), and time spent traveling to and from the location for vaccination (including travel to an off-site location (e.g., a pharmacy), or situations in which an employee working remotely (e.g., telework) or in an alternate location must travel to the workplace to receive the vaccine).

Employers are not, however, obligated by the rule to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination.

Note that that rule’s requirement that employers provide up to four hours of paid time for vaccination relates only to vaccination activities during what are otherwise regular working hours—in other words, in the middle of what would otherwise be a work day.  The preamble makes this clear, differentiating between an employer’s obligations for vaccination activities during and outside of regular working hours:

Because employers are required to provide reasonable time for vaccination during work hours, if an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant paid time to the employee for the time spent receiving the vaccine during non-work hours.

In other words, an employer must offer up to four paid hours during a regular workday for employees to get vaccinated, but if an employee chooses to get vaccinated outside of regular working hours (e.g., at night, on a weekend, etc.), the employer is not required to pay for the time—unless the obligation arises elsewhere (e.g., from a policy or collective bargaining agreement requiring payment for such time).

The distinction between an employer’s pay obligations for vaccination during or outside regular working hours does not alter the obligation to provide reasonable time and paid sick leave to recover from side effects.

Given all this, we expect many employers to take the following approach:

• Employees can take up to four hours during what would otherwise be working hours to get vaccinated, and they’ll be paid for that time to the same extent they would be paid for that time if they were working;
• Employees who choose to get vaccinated outside of regular working hours will not be paid for the time spent doing so, unless state or local law or an individual or collectively bargained agreement requires payment; and
• Time off and paid sick leave will be available to employees experiencing side effects following any primary vaccination dose, consistent with federal, state, and/or local law.

Testing

Under new 29 C.F.R. § 1910.501(g), employees who are not fully vaccinated and who report at least once every seven days to a workplace where other individuals such as coworkers or customers are present must be tested for COVID-19 at least once every seven days and provide the test results to their employer.  Unvaccinated employees who do not report during a period of seven or more days to a workplace where other individuals such as coworkers or customers are present must be tested within seven days prior to returning to the workplace and provide the test results to their employer upon return to the workplace.

We have discussed the legal issues around paying for time spent by employees in COVID-19 testing in a prior post, and the new rule notes that an employer may be required, under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested (e.g., if employee testing is conducted in the middle of a work shift).  The new rule makes clear, however, that it does not require the employer to pay for any costs associated with testing.  This said, the rule notes that employer reimbursement for testing costs may be required by other laws, regulations, or collective bargaining agreements.

Why allow employers to put the cost of testing on workers?  The preamble explains:

Given the superior protectiveness of vaccination, and OSHA’s intent for this [rule] to strongly encourage vaccination, requiring employers to bear the costs of COVID-19 testing would be counter-productive….  OSHA intends to strongly encourage employees to choose vaccination, not regular COVID-19 testing.  Because employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing, this standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost.

Face Coverings

Under new 29 C.F.R. § 1910.501(i), with certain exceptions, employers must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes.  The rule does not require the employer to pay for any costs associated with face coverings, but notes that payment for face coverings may be required by other laws, regulations, or collective bargaining agreements.

As with the costs of testing, OSHA’s position that workers can be required to bear the costs of face coverings is consistent with what the agency views as the greater goal—to encourage vaccination:

[T]hese costs [of testing and face coverings] are not mandatory because any employee who does not wish to pay them may choose to become vaccinated or leave employment …, after which the costs would not be incurred.

Employees who are not vaccinated for bona fide medical or religious reasons may be entitled to a reasonable accommodation that would avoid the costs of testing or face coverings (e.g., remote work).  In such circumstances, employers should review their pay obligations in the context of the applicable anti-discrimination laws.

Of course, an employer can always do more than the law requires, and nothing in the new rule or elsewhere prevents an employer from paying for the time and/or costs associated with vaccination, testing, and face coverings.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.