The California Department of Industrial Relations (DIR) recently updated its “Guide to COVID-19 Related Frequently Asked Questions [FAQs]” to include wage and hour issues and vaccinations.
If an employer requires employees to obtain a COVID-19 test or vaccination, the employer must pay for the employee’s time, including travel time. The California Department of Fair Employment and Housing recently confirmed that an employer can mandate that employees obtain a COVID-19 vaccination, subject to reasonable accommodation for disability-related reasons and sincerely-held religious beliefs or practices.
According to the FAQs, “the employer must pay for the time it takes for testing or vaccination because such time would constitute ‘hours worked.’” The DIR explained that this time is “hours worked” because “the employer exercised control over the worker by requiring the worker to perform [the] task” of being tested or vaccinated.
The FAQs make clear that the employer must pay for the employee’s travel time, as well as any time the employee spends waiting to take a COVID-19 test and/or receive the vaccine. The employer need not pay the employee for time spent waiting for COVID-19 test results.
If an employer requires employees to obtain a COVID-19 test and/or vaccination, the employer must pay for the cost of the test and vaccination. Under California Labor Code Section 2802, an employer must reimburse an employee for necessary business expenses. Accordingly, the FAQs dictate that an employer must pay for the costs of a COVID-19 test or vaccination as a reimbursement for necessary business expenses. The employer also may be required to reimburse the employee for travel expenses to and from the testing or vaccination location.
The FAQs recommend that employees “ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.” However, in order to avoid unnecessarily high reimbursement expenses for testing and vaccines, employers may wish to consider entering into testing and/or vaccination agreements with particular vendors and require that employees use those vendors.
In addition to complying with California wage and hour laws, California employers that are considering implementing their own COVID-19 vaccination program may want to be aware of possible compliance issues under the Employee Retirement Income Security Act.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
