As businesses reopen, many employers will consider administering medical inquiries of their employees, such as temperature checks or questionnaires regarding COVID-19 symptoms. Mandatory medical inquiries can be an effective tool for preventing the spread of COVID-19 within the workplace. There are, however, wage-and-hour risks. Employers who ignore these risks may pay much more than just the price of a thermometer.
The principal wage-and-hour issue is whether employees are entitled to wages for their time spent waiting in a temperature check line or on a similar medical inquiry. This question is less important for overtime-exempt employees, who are typically paid a weekly salary regardless of the number of work hours. In contrast, hourly paid and other overtime-eligible employees may be entitled to wages for their wait time.
Under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act (FLSA), employees must be paid for (1) their time performing their "principal" work activity and (2) any time that is an "integral and indispensable part" of their principal work activity. However, employees are not entitled to wages for the performance of activities that are "preliminary to or postliminary to" their principal work, even if the task is required by the employer.
A recent U.S. Supreme Court decision noted that a task is integral, and thus must be compensated, if it is "an intrinsic element of [the employee's principal] activities and one with which the employee cannot dispense if he is to perform his principal activities." Still, whether a task is "integral" to an employee's work or merely "preliminary" is highly fact specific. For example, whether an employee must be paid for time donning and doffing special uniforms and protective gear often depends upon the purpose of the clothing and the reason for the mandatory clothing rule. Similarly, courts have differed on whether employees must be paid for time spent waiting in line for security screenings, depending on the purpose of the screening and the nature of the employee's work.
The courts have yet to test the compensable time issue for medical inquiries related to COVID-19, but that may soon change. On the one hand, most employees can "dispense with" medical inquiries and still perform their job, which could suggest that the time related to medical inquiries is not compensable. On the other hand, COVID-19 medical screens may become a permanent (or at least quasi-permanent) part of the workplace, which could suggest that employees' wait time is compensable because the medical screens are "integral and indispensable" to employees' principal work activities.
Adding to the confusion are the many state wage-and-hour laws, which often create different rules for compensable time. For example, a recent case in California found that, under California state wage-and-hour law, overtime-eligible workers are entitled to wages for time spent waiting in anti-theft security check lines after their shift has ended. That case suggests that California employers must pay their overtime-eligible workers for medical screenings related to COVID-19. Other state courts could issue similar rulings under their own state laws.
Understandably, these are difficult financial times for many businesses. While paying wages for employee medical inquiries is an added expense, it is likely far less costly than a wage-and-hour class action lawsuit. As workplaces reopen, employers should establish testing policies and procedures that, among other things, minimize employee wait time for medical screenings. Employers should also consult with experienced employment counsel about the different state wage-and-hour laws that may apply within the jurisdictions in which they operate.
Employers with questions about how to create and administer COVID-19 screening procedures in their workplaces may contact Nicholas M. Reiter at [email protected], Robin L.S. Burroughs at [email protected], or any other Venable Labor and Employment Group attorney. Venable's Labor and Employment Group will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on Venable's COVID-19 Resources Page.