Gainesville, FL asked in Employment Law for Florida

Q: Can an employer make me get tested for Covid-19 on my day off without pay?

*No signs or symptoms, just requiring everyone to do so

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2 Lawyer Answers
Jay P. Lechner Esq.
PREMIUM
Jay P. Lechner Esq.
Answered
  • Tampa, FL
  • Licensed in Florida

A: The EEOC has opined that employers may require COVID-19 testing for employees if conducted in a non-discriminatory manner. The DOL has opined that time spent by current employees traveling to and from required (non-voluntary) medical tests, waiting for and undergoing these tests is "probably" hours worked and must be paid.

Bruce Alexander Minnick agrees with this answer

Bruce Alexander Minnick
Bruce Alexander Minnick
Answered
  • Tallahassee, FL
  • Licensed in Florida

A: The issue of requiring you to be tested is a slam dunk: Yes, your employer can require all employees to get tested.

The other issue as to WHEN the employer can require employees to get tested is less settled. And I can see a big legal difference between an employer requiring all LAID OFF employees (regardless of whether they are getting paid while laid off) to get tested before RETURNING to work--and the much more narrow issue of requiring you to get tested "on you day off."

Finally, before you do something you might regret I would be remiss not to tell you that your employer has very broad powers to handle all employment issues the way they want. Why? Because Florida is an “at will” state, which means private employers are free to hire, transfer, promote, demote, suspend, reinstate, fire and rehire employees for any reason at any time, i.e., “at will.” The only thing ANY employers cannot do is make any of these adverse employment decisions based upon the employee’s race, gender, age, handicap, disability, religion, marital status or national origin. on your day off."

Closing advice: Be very careful what you ask for--and object to.

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