Philly’s Firefighters Urged to Seek Overtime Pay for Required at Home Covid Testing

The union representing thousands of Philadelphia firefighters (IAFF Local 22) is urging its unvaccinated members to submit overtime requests for department mandated Covid testing. According to The Philadelphia Inquirer, the city and union recently reached an agreement that requires unvaccinated firefighters (approximately 700 of a total 2,300 city firefighters) test themselves weekly and upload those results to a city website prior to reporting for work.

While self-administration of a Covid test and uploading the results likely only takes 15-20 minutes of the firefighters off-duty time, the union contends members will be entitled to 8 hours of overtime pay for the activity. Union officials point to an unrelated department rule that requires a minimum of 8 hours of overtime pay when firefighters are required to work on scheduled days off. In response, the city contends it doesn’t need to pay the firefighters for this time because the self-administration of a Covid test is de-minimus and not overly burdensome on the employee’s time off.

Now, let’s pose an advance question for those folks that have attended our FLSA for Fire Departments course (either on-line or in-person). Is that the city’s best response/defense here? Remember, the de minimis doctrine is a valid FLSA defense for employers to utilize when employees work “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes.”

The de minimis defense can apply for occasional work-related telephone calls or emails, locking the doors and turning off lights at the end of the workday, and other “uncertain and indefinite periods of [work] … of a few seconds or minutes duration.” Unfortunately, there is no bright-line rule as to the precise amount of worktime that can be considered de minimus and thus not required to be compensated by the employer.

As a general rule, most courts have interpreted the de minimus defense inapplicable when the worktime involved is more than 10 minutes in length. As a result of this, anytime between 1 and 10 minutes in theory could be considered de minimus depending on the circumstances. This makes sense, it would prove an administrative and practical nightmare for employers to be responsible for paying employees for an occasional work-related email or phone call lasting a few seconds to a couple of minutes. However, at first glance, (and IMHO) it seems likely that Covid testing, and the required logging of the results online would take greater than 10 minutes under the best circumstances.

Additionally, does the required administration of a Covid test result in “uncertain and indefinite” worktime? Many would argue that the de minimus doctrine would not apply, even if it only took a few minutes of the employee’s time. Department of Labor (DOL) regulations require that employers pay employees for “fixed or regular working time . . . however small.” For example, could an employer require an employee perform nine minutes of work from home daily, and then argue that this time doesn’t need to be compensated because it is de minimus?

While the de minimus defense may not be the city’s best defense here, the city certainly does have several options related to the compensability of the Covid testing. Most notably, is the self-administration of a Covid test at home compensable worktime in the first place? We will leave that discussion for another time, since I highly doubt that this is the last that we will hear about this story.

Click here for more on the story from the Philadelphia Inquirer.

Also, this isn’t the first time that I have addressed the compensability of employer mandated Covid testing. Here is my take on that from December 2020.

Contact  William Maccarone to Discuss The Article