For much of the past year or so, employers have struggled with the question of whether they must pay employees for the time spent getting vaccinated against or tested for COVID-19, particularly during off-duty hours. The U.S. Department of Labor has finally issued guidance on this issue under the Fair Labor Standards Act.

Under the FLSA, employers must pay for all hours worked. Thus, all time between the start and finish of an employee’s workday is compensable (other than meal breaks or other breaks of more than 20 minutes), regardless of where it occurs (on-site or off-site lab/vaccination provider). Outside of normal working hours, an employer must pay for time spent on activities required in order for the employee to safely and effectively perform their job – such activities are considered “integral and indispensable” to their work.

So, in the context of COVID-19 testing and vaccination, here are the rules:

• Testing/vaccination that occurs during regular working hours must be paid.
• If the employer requires vaccination, any off-duty time spent getting the vaccine must be paid.
• If the employee is required to undergo testing in connection with a legally-required medical or religious exemption to a mandatory vaccination requirement, any off-duty time spent testing must be paid.
• If the employee is required to undergo testing because they choose not to be vaccinated, the employer is not required to pay for any off-duty testing time. This applies where an employer has...

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