[COLUMN] Should you be paid if the boss requires COVID testing and vaccination?

AS the COVID-19 pandemic continues, government agencies have issued guidance on how to reduce transmission of the illness. On March 4, 2021, California’s Department of Fair Employment and Housing (DFEH) updated its guidelines regarding frequently asked questions (FAQs) on keeping workplaces safe while continuing to uphold civil and employment rights. Below are examples of FAQs obtained from both DFEH and dir.ca.gov:

1. May employees be required to submit to a medical test to detect the presence of COVID-19 or antibodies to the virus before permitting them to enter the workplace?

An employer may mandate a medical examination when it is “job-related and consistent with business necessity.” Employers may require employees to submit to viral testing but not antibody testing. Only viral testing may be required by employers and not antibody testing because an employee with COVID-19 is unable to perform the employee’s essential duties in a manner that would not endanger the health or safety of others in the workplace even with reasonable accommodation there.

2. May an employer require its employees to be vaccinated against COVID-19?

An employer may require employees to receive a vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely- held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity.

3. Should employees be paid for time spent obtaining an employer-mandated COVID-19 test or vaccination?

If an employee is required, then the employer must pay for the time it takes to undergo the testing or vaccination.

Such time would constitute “hours worked,” which means the time during which a worker is subject to the control of an employer. Whether a worker’s time must be paid depends on whether the employer exercises control over the worker. Certainly, an employer’s requirement constitutes control and would thus make employees’ time spent to comply, including traveling and waiting time, as time worked.

An employer cannot require the worker to utilize paid leave if the time is considered “hours worked”. Regular paid sick leave may be used for preventive care, which includes medical testing and vaccines, for the employee or the employee’s family members, and is protected against retaliation under the Labor Code.

4. Is my employer required to compensate me for the cost of a COVID-19 test or for the cost, if any, of getting a COVID-19 vaccination?

Yes, if an employer expressly requires an employee to obtain a COVID-19 test or a vaccination, or if the employee obtains them as a direct consequence of the employee’s duties, the employer must pay for the costs. This is part of the employer’s legal obligation to reimburse employees for incurring necessary business expenses..

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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