Thursday, March 18, 2021

Coronavirus Update 3-18-2021: Employers facing lawsuits for failing to pay for pre-shift Covid screenings

In the early days of the COVID-19 pandemic, I asked this question: "Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?" 

My answer was a legal, "Probably," and a moral, "Definitely."

This isn't a "what does the law allow" issue; this is a "what's right is right" issue. If you're requiring your employees to queue in a line to take their temperature before you'll let them enter the workplace, pay them. Don't be cheap and don't count pennies.

Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment. What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn't go belly up if you pay each employee for a few extra minutes of time each day.
But since this is a legal blog, we might as well take a fresh look at the legal issue, courtesy of a recently filed lawsuit against The Merchant of Tennis Inc., a San Bernardino, California, racquet sports retailer. According to Law360, among other wage and hour violations, Jos√© Hernandez Solis claimed that his former employer illegally failed to pay employees for their time spent undergoing COVID-19 temperature checks at the beginning of the shifts. Law360 points out that Walmart faces similar allegations in another recently filed California lawsuit. According to that lawsuit, Walmart failed to pay its employees for the 30 - 45 minutes spent each workday for COVID-19 temperature screening and questioning.

Legally, the standard, per SCOTUS's decision in Integrity Staffing Solutions v. Busk, asks whether the pre-shift activities are "integral and indispensable" to an employee's principal activities ("necessary to the principal work performed" and "done for the benefit of the employer"). It's hard to fathom a situation during a pandemic in which pre-shift health screenings don't meet this standard. 

I think employers getting sued over this issue have real (and expensive) exposure. Don't join them. Do the legal thing. Do the right thing. Pay your employees for this time.

* Pic by Mufid Majnun on Unsplash