By Maureen James, Esq., and Marylou Fabbo, Esq.

As we begin to wade into the waters of yet another pandemic year, it seems like employers face more questions than answers when it comes to COVID-19 related topics. With vaccination and testing seemingly on everyone’s minds, we’ve received lots of questions about who has to pay for the costs associated with getting a shot or a test—employer or employee? And do employers have to compensate workers for the time spent receiving a vaccination or getting tested? How about travel expenses? The Massachusetts Attorney General’s Fair Labor Division (AG) has weighed in on some of these issues in their Frequently Asked Questions page. The AG’s answers are based on its interpretation of state rather than federal law. Here is our take on some of the more significant FAQs:

Who Pays the Cost of the Vaccinations, Tests and Face-Coverings?

Probably not the employer. Some employers are mandating that all employees be vaccinated, which has received a stamp of approval from the Equal Employment Opportunity Commission. According to the EEOC, federal law does not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, as long as employers provide reasonable accommodations for those who cannot be vaccinated based on their religious beliefs or disability. So, who bears those costs? 

Well, we are fortunate right now that both vaccination and testing are free. (We find it unlikely that the federal government will stop providing funding for the COVID-19 vaccination, booster shots or testing anytime in the near future, if ever.) However, if there becomes a cost for testing, when the test is taken may determine whether an employer has to pay for it. Here is what the AG says:

“If an employee has opted for an allowable testing alternative to getting a vaccine under an employer policy, and the employer simply requires a test result, but does not mandate when, where and how the employee obtains it, it is unlikely that the employer needs to bear the cost of the test.” 

The same is true for COVID-19 vaccinations, even when the employer mandates employees be vaccinated. When it comes to face coverings, employers don’t have to pay unless it mandates a specific face covering, such as one that bears a company logo. The more prescriptive an employer is about the face covering, the more likely the employer will have to bear the cost.

Do Employers Have to Pay Employees’ Wages for Time Spent Receiving the Vaccine or Being Tested?

If an employer requires employees to provide proof of vaccination but does not mandate when, where or how the employee receives the vaccine, the AG has stated that the time spent traveling to, receiving and returning from is likely not compensable. (For a formal opinion, the AG has recommended that employers contact it at dlsfeedback@state.ma.us.)

If employees receive the vaccine and suffer side effects that prevent them from working, then they take any available Massachusetts Earned Sick Time or Massachusetts COVID-19 Temporary Emergency Paid Sick Leave.

Keep in mind that the federal OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) may require employers to pay employees for the time it takes them to get vaccinated. The deadline for compliance with the ETS is January 10, 2022, with the exception of weekly testing. (Our next blog post will address what covered employers need to have in place by January 10.)

Must Employers Pay for Employee Travel Expenses to and from Vaccinations or Testing?

Again, the more control the employer asserts over the when and where, the more likely it will have to bear the cost of transportation expenses. However, if an employer simply mandates that employees provide proof of a vaccine, but does not mandate when, where and how employees obtain it, travel to and from the vaccination site is unlikely to be considered compensable time. The same goes for testing. Employers can request a formal opinion on whether their circumstances would require them to pay for travel by contacting the AG at the email above.

The above summary generally applies to Massachusetts employers. However, employers must comply with both state and federal laws. Also, if you are an employer of 100 or more employees who is covered by OSHA’s Emergency Temporary Standard (ETS)—which, at the time of this writing, is in flux—you have to ensure that your employees are vaccinated or are tested weekly and may have additional or different obligations. We will address these in a future blog, but in the meantime, if your business is tackling COVID-19 related issues and has questions about how best to navigate them, please feel free to contact our office.