In September 2021, the state Department of Health issued a “determination” that required all New York State school districts to implement weekly COVID-19 testing for unvaccinated employees (and those employees who do not want to provide proof that they have been vaccinated). School district employees who choose to be vaccinated are entitled to up to four hours of paid leave for this purpose. However, there is no statutorily required paid leave for employees who choose to be tested weekly, and many school districts mandate that the weekly testing be done outside of the regular workday.

The nasal swab (for example) takes a second or two at most. But there is also the time spent getting to the testing site, filling out necessary paperwork or on-line forms and waiting for the test (as well as, depending on the type of test, the results). Are school districts required to pay their unvaccinated employees at least the minimum wage for this time? Are school district employees entitled to be paid overtime if their regular work hours plus the time they spend getting tested exceeds 40 hours per week or meets contractual overtime requirements?

This article will explore the legal test that applies and the arguments on both sides.

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