UPDATE: President Biden is expected to announce executive orders that will mandate universal vaccination for federal workers and contractor employees with no testing option. We will post an update when the expected orders are issued.

In July, President Biden announced a directive that federal workers and contractor employees must get a vaccination or get a test before they can enter federal facilities. Agencies were directed to enact their own practices in accordance with “Agency Model Safety Principles” issued by the Safer Federal Workplace Task Force, posted on the web at (https://www.saferfederalworkforce.gov/downloads/revised%20COVID19_Safe%20Federal%20Workplace_Agency%20Model%20Safety%20Principles_20210728.pdf) (“COVID Safety principles”).

Agencies were instructed that they “need to ask” federal employees and onsite contractors about their vaccine status and have them sign an attestation confirming their vaccination status. Those who are not fully vaccinated or refuse to attest to their status are to “be treated as not fully vaccinated for purposes of safety protocols.” The safety principles further state that federal employees and onsite contractors who are not fully vaccinated “must comply with a weekly or twice-weekly screening testing requirement.” More recently, the Safer Workplace task force has updated its “FAQ” pages to flesh out the safety principles. An overview of the FAQs can be found here; FAQs about testing are here. However, many questions are going unanswered about how federal contractors are to implement the vaccine or test mandate.

First, each agency (perhaps each site) is to come up with its own policies. It’s possible, but not guaranteed, that each agency will conclude that the “testing program” they “must establish” means they have to provide testing for both “federal employees and contractor employees” through “in-house capabilities,” a “third party testing provider” or working out an interagency arrangement. See FAQs for testing. If so, then federal contractors may not be forced to handle this on their own and at their expense. On the other hand, this devilish detail could vary such that many of our clients could be saddled with inconsistent obligations across their workforce. For example, agencies could conclude that the FAQ regarding the payment for testing suggests that agencies only need to pay for the testing of federal employees.

Next comes the question of whether employees need to be paid for the time to get a test. The FAQs state that, absent a demonstrated need for more time, federal employees should be paid up to one hour for getting a test during their regular working hours. However, notwithstanding the task force’s guidance about federal employees, there’s not even a hint as to whether contractors are to do the same. Or may they direct their workers to get tested on their own time possibly without pay?

Whether an employer is required to pay its workers for obtaining a negative COVID test (in lieu of obtaining a COVID vaccine) depends on whether the time would be considered working time to which the Fair Labor Standards Act (“FLSA”) minimum wage and overtime requirements are applicable. An employee’s time that is spent predominantly for his or her employer’s benefit constitute “hours worked” that is compensable under the FLSA. The test at issue here is a species of medical examination. DOL’s “Statements of General Policy or Interpretation” state that the “[t]ime spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he [or she] is working constitutes hours worked.” 29 C.F.R. § 785.43. Less clear is whether time spent on medical exams outside of work are hours worked under the FLSA. Without going into them, there are a number of court cases and Wage and Hour Opinion Letters in which the answer varies.

So far, the closest thing to an answer regarding COVID testing that we’ve found is the the pre-vaccine mandate “Q&A” regarding COVID issues in workplaces on the Department of Labor (“DOL”) website. One question addressed whether employers should pay employees who are required to get a COVID test outside of working hours. See COVID Q&A, posted at https://www.dol.gov/agencies/whd/flsa/pandemic#8 (emphasis added). The answer? “it depends” on whether “the testing is necessary for them to perform their jobs safely and effectively during the pandemic.” If so, yes. If not, no.

Needless to say this policy is in its infancy and may evolve as it reaches adolescence. Indeed, the FDA’s recent approval of the Pfizer vaccine may prompt the Government to convert its vaccine or test policy to a vaccine or else mandate. A number of private sector employers are headed that way.

Contractors should keep their eyes on this. We certainly will.