There’s been so much talk about whether you can screen employees for COVID symptoms. If so, how and when do you do it? Do you just take temperatures? Do you ask about symptoms? Do you use a questionnaire? What do you do if employees refuse to be screened? Can you require them to be screened?
Let’s start here. Yes, you can require your employees to undergo screening for COVID symptoms. I would go as far as to say you should — must, even– in order to fulfill your obligations as an employer to provide your employees a safe workplace. COVID is recognized as a hazard likely to cause serious illness, and in some cases, death. The federal Occupational Safety and Health Administration takes that position. State counterparts have tended to follow suit. If you’re serious about fulfilling this obligation (and avoiding liability) you need to screen your employees every day and let them know they must be screened prior to beginning work each day. You may be thinking, “OK, fine I’ll screen. I’ll set everything up. I’ll tell employees, ‘No screen, no work’, and then we’re good to go”. Not so fast! There’s one more piece. Isn’t there always? It’s about money. Isn’t it always? Let’s explore that. Read on… OK, I won’t keep you in any more suspense. For any non-exempt (i.e. overtime-eligible) employees you most probably need to pay them for the time they spend waiting for and undergoing COVID screening. Now, I can hear at least a few of you saying (or at least thinking), “Wait. I pay them to work. I have a good job description for each of them, and I pay them to fulfill those functions. COVID screening isn’t in the job description”. OK, I hear you, but guess what? Effectively, COVID screening is part of the job description– for now, at least. Just hear me out–and, as always, let’s look at a real live case example.
This week’s case example is really two virtually identical cases against Walmart. That shouldn’t really be a surprise. Walmart is often sued by its employees. One is a $5 million proposed class-action lawsuit headed by current and former employees, Tristan Smith and Kathy Arrison, just filed two days ago in the US District Court in Arizona. The other is in the Eastern District of California. (Do I have your attention now?) According to the plaintiffs (in the more recent claim in Arizona), Walmart required its employees to arrive 10 to 15 minutes prior to the start of their shifts to undergo mandatory COVID screening but didn’t pay their workers for all the time spent doing so. As a result, Walmart, according to the lawsuit, was unjustly enriched. The allegations in the California case are virtually identical.
Per Attorney, Todd C. Werts, the workers, “did everything asked of them to make sure that the Walmart stores could stay open and their customers would stay safe” during the pandemic. Werts also notes that Walmart has “enjoyed significant profits” during the pandemic and that Walmart employees deserve to be compensated “for their efforts in contributing to that success”. I’ll come back to this point in a moment.
Per Walmart’s spokesperson, “All hourly associates have extra COVID screening time systematically added to their daily shifts and paychecks. This is in addition to our manual process for adding extra time if there ever is a reason this additional time is not sufficient. We will respond as appropriate with the court once we have been served with the complaint,” According to the employees, however, the “extra time” Walmart refers to was five minutes, whereas the actual screening time took 10-15 minutes.
Returning to Mr. Werts’ point that Walmart employees deserve to be compensated: It certainly sounds like a strong moral argument, but there’s also a compelling legal argument. The Fair Labor Standards Act (FLSA) requires employers to pay all non-exempt employees for all time worked. The U.S. Supreme Court has long held that ‘time worked’ can include preliminary (and postliminary) activities. Basically, if the preliminary activities are necessary for an employee to safely perform their job functions then they are integral to the work in question — and the time spent on those activities is “time worked” within the meaning of the FLSA. For example, employees in a factory who must don protective gear beforehand most often are entitled to be paid for the time donning that gear, and for the time they spend taking it off after their shifts. That would be an example of a “donning and doffing” case.
Does COVID screening prior to a qualify as “integral to the work”? Is it necessary for the safe performance of one’s job? To the extent that it goes a long way toward keeping other employees safe and thereby allows the employer to continue operating its business, yes. Under the FLSA, an employer who benefits from the time an employee spends in preliminary (and postliminary) activities generally has to pay for that time. The fact that an employer requires an employee to do so, and exercises control over the employee’s time is also a factor that often tips the scales toward requiring an employer to pay for that time.
If Walmart actually added time to the employees’ shifts to compensate them for time spent during screenings, what’s the problem, though? If that time was some arbitrary amount that was actually less than the time actually spent in screenings, then the employees in fact were not completely compensated for the time. If the case goes to trial, a jury will have to decide that issue. In most cases, COVID screening would likely be found to be integral to the work. That may change after enough people have been vaccinated, and the number of new cases decreases (significantly). For now, however, here’s my advice to employers: If you’re requiring your employees to undergo COVID screening, then pay your non-exempt employees for the time spent undergoing the screening–unless, like Walmart, you don’t mind being sued.
One more thought: The cost of paying for the screening time is far less than a collective lawsuit for unpaid wages and it’s certainly far less than the cost of being unable to continue your business due to transmission of an infectious, often deadly virus. I think I’ve made my point. See you next time.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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