Firefighters, Mandatory COVID-19 Testing & the FLSA

This is the second of several posts dedicated to answering questions asked by attendees at the recent FLSA for Fire Departments live webinar. If you have questions like this, please consider attending the next live webinar in February 2021.

FLSA Question: We require mandatory weekly COVID tests for all of our firefighters. We pay off-duty firefighters four hours of overtime to come into the station every week to get tested. First, do we need to pay them four hours for what is really only a twenty-minute activity? Second, since it is related to public health, do we even have to pay them at all for this?

Answer: Very good question. I think that you would be surprised to realize how many wage and hour issues a seemingly straight-forward question like this one presents. Let’s break it down piece-by-piece.

First, the FLSA does not require paying an employee for any hours not actually worked. The FLSA simply requires that non-exempt [i.e., overtime eligible] employees be paid for all the time they are suffered or permitted to work. If an employee is working for twenty minutes, there is no FLSA requirement to pay that employee for more than twenty minutes. There could be a collective bargaining provision or even a state law that requires an employee receive a guaranteed minimum number of paid hours when that employee is called back into work, however there is no such requirement from the FLSA.

Similarly, the FLSA does not automatically require an employee receive overtime pay for returning to work after normally scheduled work hours. The FLSA requires non-exempt employees receive overtime for all hours worked over the maximum hours for each workweek or work period. There is no per se FLSA requirement for overtime pay for participating in the test after normal work hours. A collective bargaining agreement and/or city policy could mandate overtime pay for employees that work additional hours above and beyond their normal work schedule, however that is also not a requirement of the FLSA.

In order to even begin to answer the second half or your question, I need to make two basic assumptions. First, the firefighters that you reference are eligible to work. In other words, they are not out of work on a work-related disability or illness. Workers’ compensation law and other local laws would likely control that analysis. Second, these firefighters are not high-ranking officers that are overtime exempt. For example, staff chiefs or top-level administrators would likely not be eligible for FLSA overtime regardless of whether the time spent for a mandatory COVID test is actually compensable.

Ok, is the time spent by off-duty firefighters participating in mandatory COVID testing compensable? Unfortunately, neither the FLSA nor Department of Labor (DOL) regulations directly address whether off-duty compulsory medical testing must be compensated. However, as a general rule most courts and the DOL have viewed time spent by employees—at the direction and control of their employer—participating in mandatory medical examinations as compensable hours worked. Similarly, most courts have found that time spent by employees submitting to mandatory drug testing is also compensable work time.

The DOL has even issued two opinion letters that support this fact:

[W]henever an employer imposes special requirements or conditions that an employee must meet before commencing or continuing productive work, the time spent in fulfilling such special conditions is regarded as indispensable to the performance of the principal activity the employee is hired to perform. Included in this general category are required physical exams . . . 

DOL Wage and Hour Opinion Letter, Jan. 26, 1998

Time spent undergoing a physical examination is time during which the employee’s freedom of movement is restricted for the purpose of serving the employer and time during which the employee is subject to the employer’s discretion and control. It is immaterial whether the time spent in undergoing the required physical examination is during the employee’s normal working hours or during nonworking hours. The physical examination is an essential requirement of the job and thus primarily for the benefit of the employer. Therefore, it is our opinion that the time so spent must be counted as hours worked under the FLSA.

DOL Wage and Hour Opinion Letter, Oct. 7, 1997

While the DOL has remained silent on whether employer mandated COVID testing is compensable, based on the above opinion letters, it seems reasonable that the time spent by off-duty firefighters related to mandatory COVID testing should also be compensated. However, there is no FLSA requirement to pay the firefighters a minimum number of hours for returning to work to be tested, nor any FLSA requirement to automatically pay the firefighters overtime regardless of the number of hours worked in the work period. Very good question.

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