COVID-19 has changed a lot of the normal practices we see in the workplace. Masks, social-distancing, and not to mention unprecedented legislation on federal paid sick leave. There’s a lot that employers have to keep up with. And one of these new workplace practices is temperature checks. In an effort to increase safety within the workplace, a number of employers are now mandating that employees get their temperatures checked right before entering the building. While this can be a great idea in terms of safety, it does present a novel question regarding wage and hour law. Simply put – do you have to pay your employees for the time involved in getting their temperatures checked before work?
The Fair Labor Standards Act (FLSA) and Portal-to-Portal Act
If you’ve ever had a question regarding federal minimum wage or overtime payments, you may already know that the FLSA governs a number of wage and hour law issues. Similarly, the FLSA has a lot to say about what constitutes “hours worked” or “compensable time” i.e. what sort of activities you have to pay your employees for. So does the Portal-to-Portal Act.
In sum, federal law requires that you pay employees for the hours they work. However, there are certain activities that may seem work-related, but do not have to be compensated for. For example, you aren’t responsible for paying your employees to pack their lunch at home in preparation for their lunch break during the day.
Activities that employees do before and after work are governed by the Portal-to-Portal Act, and are called “preliminary” and “postliminary” activities. As a general rule, activities that are preliminary or postliminary to an employee’s principal activities are not compensable. So, answering the question regarding temperature checks is two-fold: 1) what are my employees’ principal activities and 2) is a temperature check before starting work considered to be preliminary to their principal activities?
What Are Principal Activities?
Principal activities are activities which an employee is “employed to perform.” They do not include noncompensable walking, riding, or traveling. And a principal activity doesn’t even need to be predominant in some way over all other activities that an employee performs throughout the day. Rather, an employee could be engaged in several principal activities during their normal workday. It includes all activities that are an “integral part” or that are “indispensable to its performance.”
For example, say you have an employee in a manufacturing plant who is responsible for operating a lathe. Operation of the lathe would be considered a “principal activity” of the employee’s job. It’s one of the main things they do. But cleaning the machine or installing a new cutting tool would be considered “integral parts” of that principal activity, as well. Similarly, if an employee in a chemical plant can’t perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity.
Preliminary Activities
Federal law defines preliminary activities as those that occur prior to the time on any particular workday at which an employee commences their principal activities. So, once you’ve identified what your employees’ principal activities (and related integral/indispensable activities) are, the analysis is simple – anything prior to the commencement of those activities is preliminary, and therefore does not need to be paid for.
But the question with respect to temperature checks before work is not so simple. At face value, it seems as though taking an employee’s temperature before they start work for the day is a clear example of a preliminary activity. But what if the temperature check itself was considered an integral part of an employee’s job?
The Grey Area of Integral and Indispensable
There is certainly a strong argument to say no, getting their temperature checked is not an integral part of any employee’s job. And under normal circumstances, the analysis would likely end there. However, as previously discussed, the fact that we are in an official pandemic (as declared by the CDC and WHO) has the potential to change that analysis in a significant way.
Consider this: as an employer, you have various responsibilities to protect your employees’ health in the workplace under Illinois law, such as ensuring that all your employees are wearing face masks and practicing social distancing. And while there is no explicit directive under Illinois law to send sick employees home or check their temperatures, failure to adequately address an outbreak of COVID-19 in the workplace could land you in the middle of an investigation by OSHA or the Illinois Department of Public Health (IDPH).
With that in mind, there seems to be a reasonable argument that not having COVID-19 is a necessity, and therefore checking an employee’s temperature prior to them starting work is indispensable to the performance of their job, especially because the employer is the one that is mandating the temperature check in the first place.
Under this analysis, an employee could have a potential claim against an employer for payment of wages during the time it takes to get their temperature checked – waiting in line, filling out paperwork, etc.
So, Should I Pay Them or Not?
As you can see, the law is unclear on this point. A conservative reading of federal wage and hour law would suggest that employees should be paid for the time they spend waiting at work to get their temperatures checked. But, as with most things COVID-19 related, we do not have any case law on point to give us guidance here.
This is further complicated by the fact that state law may have something to say on the matter, and that can vary greatly depending on where your business is. This is not just a federal law issue – all levels of law should be assessed before making the decision to pay or not pay for temperature checks.
Before starting temperature checks, and definitely before you decide to withhold paying employees for the wait time, you should speak with an attorney and have your particular situation carefully analyzed.
Should you have any questions about state or federal wage and hour law, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.
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