The Mysterious Case of the Disappearing U.S. Department of Labor Wage and Hour Division Fact Sheet No. 84

I’m going to share with you the Mysterious Case of the Disappearing U.S. Department of Labor Wage and Hour Division Fact Sheet No. 84.

Last week, right around the time that my employment law colleagues and I were recording The Employer Handbook Zoom Office Hour (available here on The Employer Handbook YouTube Channel), the U.S. Department of Labor published U.S. Department of Labor Wage and Hour Division Fact Sheet #84: Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA)

And then just like that — it vanished 💨

No. 84 addresses the compensability of time employees spend undergoing COVID-19 health screenings, testing, and vaccinations under the Fair Labor Standards Act (FLSA). I’ll refer to this below as “COVID Stuff.”

If this sounds familiar to you, it should. The DOL repurposed some of its earlier pandemic guidance. But. No. 84 focuses more on the compensability of COVID Stuff that occurs during and outside normal working hours.

There are four big takeaways:

1. If an employer requires an employee to do COVID Stuff during the employee’s normal working hours, the employee’s time engaged in the activity is compensable.
2. Suppose an employer requires an employee to do particular COVID Stuff (e.g., mandatory vaccination), and the employee is entitled to a reasonable accommodation under federal civil rights laws. Then, the time spent doing COVID Stuff outside of normal working hours (e.g., weekly testing) is “integral and indispensable” to the employee’s work and therefore compensable.
3. Where an employee can receive the COVID-19 vaccine as an alternative to regular COVID-19 testing, but where the employee has voluntarily declined to be vaccinated, the employer is not required to pay the employee for time spent undergoing regular COVID-19 testing.
4. Where an employer does not require COVID Stuff, an employee’s choice to do COVID Stuff outside of normal working hours is generally not compensable.

I like this guidance from the DOL. Indeed, I’m inclined to share it with clients. So, why, without any explanation, did the DOL remove it from Fact Sheet Numeric Index about as fast as the Chiefs and Bills can score points at the end of a Super Bowl playoff game?

Like Darth Helmet traveling at ludicrous speed.

I think it’s because the DOL prepared No. 84 before the Supreme Court stayed OSHA’s vax-or-test mandate, and No. 84 specifically mentions “OSHA’s Vaccination and Testing ETS.”

Otherwise, your guess is as good as mine, and we may never solve the Mysterious Case of The Disappearing U.S. Department of Labor Wage and Hour Division Fact Sheet No. 84. 🔎