DOL issues, then unexpectedly withdraws COVID-19 guidance

The U.S. Department of Labor (DOL) recently issued a document titled “Fact Sheet #84: Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA).” In it, the DOL addressed specific circumstances under which employers would be responsible for compensating employees for time spent engaged in activities related to the virus such as health screenings, testing, and vaccinations. The next day, however, the guidance was withdrawn without any explanation. It’s possible the agency pulled the fact sheet because it referenced and incorporated the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS), which the U.S. Supreme Court blocked.

What Fact Sheet #84 said

If you require employees to obtain a COVID-19 vaccine dose, undergo a test, or engage in a related health screening or temperature check during their normal working hours, you must compensate them for the time, regardless of where the activity occurs. The key is whether you mandated the virus-related activity during their regular work hours.

What about activities such as COVID-19 vaccinations and testing outside of normal working hours? The DOL explained you generally must pay employees for time spent going to, waiting for, and obtaining a mandatory vaccine dose if they (1) report to a workplace where other individuals are present and (2) don’t work exclusively outdoors.