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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.

Exempt v. non-exempt employees

The Fair Labor Standards Act (FLSA) is a federal law that, among other things, establishes minimum wage and overtime pay requirements for certain employees in the private and public sectors. The New York Labor Law is the state analogue to the FLSA, though its minimum wage and overtime provisions apply only to certain private sector employees and school district employees working in a “non-teaching” capacity.

Both laws divide employees into two general categories for wage and overtime purposes: “exempt” and “non-exempt.” Teachers and administrators are classified as exempt professional employees who are not statutorily entitled to a minimum hourly wage or overtime pay. Therefore, the health commissioner’s determination does not raise any statutory wage and hour issues with respect to them. However, if exempt employees are in a collective bargaining unit, the applicable collective bargaining agreement might create an obligation to pay these employees. There may also be an obligation to bargain with the union about the impact of the determination.

School aides, security officers, custodians, cafeteria workers, monitors and secretaries, among others, are classified as “non-exempt” employees in most cases. Non-exempt employees must be paid at least the state minimum wage for all hours worked and are entitled to be paid one and a half times their regular rate of pay for all hours that they work in excess of 40 hours per week. (However, in certain circumstances, and subject to certain rules, they may be given compensatory time off instead.)

It is these “non-exempt” employees for whom there is a question about whether they must be paid for weekly off-duty testing pursuant to the determination and about whom the remainder of this article addresses.

Is COVID-19 testing pursuant to the determination “work”?

Employers are only statutorily required to pay employees for “work.” Broadly speaking, courts applying both the FLSA and New York’s Labor Law have defined “work” as an exertion or loss of an employee’s time that is: (1) controlled or required by an employer; (2) pursued necessarily and primarily for the employer’s benefit; and (3) if performed outside the regularly scheduled work time, an integral and indispensable part of the employee’s principal activities.

The question, then, is whether weekly off-duty testing pursuant to the determination is “work.” What makes that question difficult to answer is that employees have a choice: they can either get fully vaccinated or tested weekly. Those who choose to test weekly can also, for the most part, decide what type of test to take (e.g., rapid or PCR), when they are tested (e.g., at what non-work time and on what day), where they are tested (e.g., what laboratory, as long as it is state-approved) and how they are tested (e.g., nasal swab, throat swab, saliva test). In other words, the employee is effectively in control of whether, and how, weekly testing is done.

As discussed below, the arguments for weekly off-duty testing meeting the definition of “work” are easily stated and intuitive. However, while there is no case law directly on point, there are good arguments that weekly off-duty testing pursuant to the determination does not meet any (or, at least, all) of the elements of the courts’ definition of “work.” 

TEST 1: Is weekly off-duty testing pursuant to the determination “controlled or required” by the employer?

The first requirement for an activity to be considered work is that it must be “controlled or required” by the employer.

Generally, an activity is controlled or required if it is dictated by employer order or policy or is required due to the nature of the job. In deciding whether an activity is “controlled or required” by the employer, courts often look at whether the employer selected the individuals who participated in the activity, dictated the extent of employee’s participation in the activity or disciplined employees for not participating in the activity. 

Based on this, employees and their unions could claim that, pursuant to the determination, school districts are required to make their employees do something; i.e., “have testing performed once per week” unless the employee opts to provide proof of full vaccination. They could further argue that few, if any, employees would choose, on their own, to be tested weekly and that they are unable to use whatever off-duty time is now being spent on weekly testing for their own purposes. Therefore, they could assert that compliance with the determination is not strictly “voluntary” in the sense that failure to comply would jeopardize their continued employment.

In support of this position, employees and their unions could point to Todd v. Lexington Fayette Urb. Cty. Gov’t, a 2009 decision by a federal court in Kentucky. There, the court found that a police officer was under his employer’s control when he was required to attend counseling and Alcoholics Anonymous sessions, even though he was permitted to select his psychiatrist and choose which meetings to attend, because his employment would have been adversely affected if he did not.

School districts could counter they do not require testing per se; employees may comply with the determination either by testing or by vaccination.

School districts could also point to several cases. One is the D.C. Circuit Court’s decision in Leone v. Mobil Oil Corp. There, the issue was whether employee representatives were entitled to pay for the time that they spent accompanying a federal safety inspector. The court held that the employer did not “control or require” this activity because the employer did not choose the employee representative or the form or extent of the employee’s participation. Other relevant cases are Dade Cty., Fla. v. Alvarez (11th Cir.) and Wheat v. J.B. Hunt (C.D. Cal.).

Drawing on these and other precedents, school districts could argue that the weekly off-duty tests are not controlled by the employer because of the freedom the determination affords employees and the non-work uses for the results.

TEST 2: Is weekly off-duty testing pursuant to the determination “primarily for the benefit of the employer”?

The second requirement for an activity to be considered “work” is that it must be pursued primarily for the benefit of the employer. The issue is not whether the employer benefits at all, but whether the time is spent predominantly for the employer’s benefit.

Unions and employees could argue that ensuring that school buildings are safe and COVID-19-free benefits school districts. In fact, employees cannot perform any of the tasks for which they are employed if they are not either tested or vaccinated because, without that, they are prohibited by the determination from entering a school building. Moreover, it is certainly in a school district’s interest to keep the virus from spreading among its students and employees, which can lead to high rates of absenteeism or even the closure of schools.

Employees and their unions could point to the Eighth Circuit’s decision in Barrentine v. Arkansas-Best Freight System, Inc. The court rejected the employer’s claim that the safety inspections of trucks were primarily for the benefit of the driver, not the employer.

However, school districts could point to Gibbs v. City of New York, a 2015 decision by the U.S. District Court for the Southern District of New York. In that case, police officers identified as having a problem with alcohol use were required to attend “mandatory alcohol treatment and counseling sessions, or else face disciplinary action including, potentially, termination.” The court observed that the police department benefitted “from having sober employees” and from avoiding the costs associated with hiring and training a new employee. “But these,” the court concluded, “are not the kinds of benefits that courts have recognized as decisive in this context. Something more is required.”

Likewise, in the Dade County, Fla.case referred to above, the time that police officers spent on physical exercise while off-duty was not viewed by the court as being performed predominately for the benefit of the employer. While maintaining physical fitness was a work requirement, the individual officers' workouts were deemed to be voluntary and non-compensable.

Similar reasoning could be applied to testing conducted pursuant to the deterimination to argue that it affords employees sufficient flexibility and is primarily for their own benefit, or the general public’s, even though school districts admittedly benefit as well.

TEST 3: Is COVID-19 testing an “integral and indispensable” part of employees’ “principal activities”?

The final element for an activity to be considered “work” is that, if it is done outside of regular work hours, it must be an “integral and indispensable” part of the employee’s “principal activities.” This is contrasted with “preliminary or postliminary” tasks, which are usually relatively trivial, not onerous, and related to preliminary preparation, maintenance and cleanup.

Employees and unions could cite Steiner v. Mitchell, a 1956 case in which the U.S. Supreme Court found that battery plant workers had to be paid for post-shift showers because they were exposed to toxic chemicals.

In a Q&A document issued by the U.S. Department of Labor (USDOL) titled “COVID-19 and the Fair Labor Standards Act Questions and Answers,” the USDOL addressed whether employees must be paid for the time spent undergoing testing:

For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic....

Thus, the USDOL has taken the position that COVID-19 testing is integral and indispensable to (and only to) jobs that involve significant interaction with the general public. But the USDOL assumed that the employer had mandated that the employee be tested. In the case of the determination, that is arguably not the case. Furthermore, it is not clear whether school district employees have jobs that involve “significant interaction with the general public,” and if so, which ones.

Relying on the USDOL Q&A, employees and their unions could argue that virtually all school district jobs involve “significant interaction with the general public,” making testing “integral and indispensable” to their jobs. Moreover, even if the USDOL or a court did not consider students to be the “general public,” many school employees have jobs that require them to greet visitors, see parents during pickup and drop off, etc. 

To counter this argument, school districts could note that employees performed their duties pre-pandemic, and for a number of months during the pandemic, without being tested on a weekly basis. In fact, the employees themselves can dispense with the task of undergoing weekly testing by getting vaccinated. Thus, school districts could argue that weekly testing cannot be considered “indispensable” to employees performing their assigned duties.

School districts could also cite McLaughlin v. Gen. Elec. Co., a 1988 decision in which the U.S. District Court for the Northern District of New York viewed required physical fitness training not to be a principal activity for security inspectors. And in BP, Inc. v. Alvarez, the U.S Supreme Court found that the time that poultry-plant employees spent waiting to put on protective clothing was not compensable.

Decision time: Should school districts pay overtime for COVID testing?

Until there is definitive court ruling, school boards will have to balance the pros and cons of refusing to pay their unvaccinated, non-exempt employees for the time it takes to receive their weekly COVID-19 tests off duty and any collective bargaining implications of their choice.

On the one hand, school districts have an obligation to be prudent and responsible with taxpayer funds, and they would have good arguments in any litigation brought by employees or unions. Moreover, paying for weekly off-duty testing could alienate employees who chose to be vaccinated, making themselves ineligible for additional compensation.

On the other hand, despite the precedents discussed in this article, there is no guarantee of victory in court, and the penalties for employers FLSA and New York’s Labor Law violations are severe, including the unpaid amounts, an additional equal amount called “liquidated damages,” prevailing party’s attorney’s fees, interest and costs.

Consult with your superintendent and school attorney about what options are available to your school board.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Adam S. Ross of Lamb & Barnosky. LLP.

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