The California Department of Industrial Relations (DIR) recently updated its Guide to COVID-19 Related Frequently Asked Questions to include wage and hour issues related to employer-mandated COVID-19 tests or vaccinations.  According to this latest guidance, if an employer requires employees to obtain a COVID-19 test or vaccination, the employer must pay “for the time it takes for testing or vaccination because such time would constitute ‘hours worked.’”  The DIR noted that this time would constitute “hours worked” because “the employer exercised control over the worker by requiring the worker to perform [the] task” of being tested or vaccinated.  This guidance also explains that any time the employee spends waiting to take a COVID-19 test and/or receive the vaccine is compensable as hours worked, though there is no requirement to pay employees for time spent waiting for test results.

The FAQs also indicate that if an employer requires employees to obtain a COVID-19 test and/or vaccination, the employer must pay for the cost of the test and vaccination in accordance with California Labor Code Section 2802, which provides that employers must reimburse an employee for necessary business expenses.  The employer also may be required to reimburse the employee for travel expenses to and from the testing or vaccination location “[i]f the testing or vaccination is performed at a location other than the employee’s ordinary worksite.”  The DIR recommends that employees “ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.”

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Michelle Lappen Michelle Lappen

Michelle Lappen is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She assists clients in a wide range of labor and employment matters in a variety of industries, including entertainment, financial services, and…

Michelle Lappen is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She assists clients in a wide range of labor and employment matters in a variety of industries, including entertainment, financial services, and technology.

Michelle earned her J.D. from Columbia Law School, where she was an articles and submissions editor for the Columbia Journal of Law & the Arts. During law school, she also was a teaching fellow for the Advanced Negotiation Workshop and advocated for state and federal legislation as a clinical student in the Columbia Law Health Justice Advocacy Clinic.