Employer Required COVID-19 Testing – Paid Time or Not?

Employer Required COVID-19 Testing – Paid Time or Not?
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Employer Required COVID-19 Testing – Paid Time or Not?

If your employer requires that you get COVID-19 testing, you may be entitled to pay for the time you spend getting the test.

Some New Mexico employers are requiring their employees to either get the COVID-19 vaccine or submit to weekly COVID-19 testing. This is also required for some employers under Governor Michelle Lujan-Grisham’s current Public Health Order. Employees are questioning whether they must be paid for the time they spend getting these required tests.

If an employee is required to get COVID-19 testing either during work hours or on their time off, the employer may be required to pay the employer for their time spent performing these activities. If payment is required, employers can be subject to hefty penalties for refusing to pay wages owed.

Both federal and New Mexico state law require employers to pay employees at least a minimum wage for all hours worked. Specifically relating to Covid-19 testing required by employers, the United States Department of Labor is taking the position that if you are required to go get a Covid-19 test during your workday, “your employer is required to pay you for time spent waiting for and receiving medical attention at their direction.” See COVID-19 and the Fair Labor Standards Act Questions and Answers, COVID-19 Testing.

See https://www.dol.gov/agencies/whd/flsa/pandemic.

The same goes for requirements that you get tested “if the task you are required to perform is necessary for the work you are paid to do.”  While no courts have decided this issue in New Mexico, and it does not appear to have been decided elsewhere, a court considering this issue likely will require an employee to prove that “the activities at issue are an integral and indispensable part of their principal activities and not merely activities that are preliminary to their principal activities such as commuting to work.” See Whalen v. U.S., 93 Fed. Cl. 579 (Ct. Fed. Cl. 2010).

In New Mexico, the current Public Health Order’s requirement that certain employers require their employees get regular COVID-19 testing could be considered to be “integral and indispensable” to certain employees’ work during the pandemic under current Department of Labor guidance.

If you are being required to get vaccinated or to be regularly tested by your employer, you may have a wage claim if your employer refuses to pay you for your time doing so.  An experienced wage and hour lawyer can help. Contact us at 505-900-3559 if you have questions.

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