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Pay for Virus Safety Measures Turns on Varying Wage Laws

April 30, 2020, 7:58 PM

Workers who go to court seeking payment for time spent undergoing coronavirus-related safety protocols will see their chances of success vary based on what federal or state wage law they allege their employer violated.

Sanitation procedures, infection testing, and temperature checks could become common as businesses begin restarting operations amid a deadly pandemic. Giant employers like Walmart Inc. and Amazon.com Inc. have started checking employees’ temperatures when they get to work.

Lengthy waits for pre-shift safety protocols could become an issue at large facilities with workforces that clock in at the same time, such as warehouses, factories, and food-processing plants, said Rebecca Reindel, the AFL-CIO’s health and safety director.

In an early example of what could be a growing litigation trend, a group of correctional officers in Cook County, Ill., filed a proposed class action last week claiming they should be paid for time spent sanitizing their uniforms, gear, and vehicles, showering extensively, and cleaning personal protective equipment. The officers sued under the federal Fair Labor Standards Act and Illinois wage law.

Federal law has a high bar for whether workers must be compensated for pre- and post-shift activities—requiring pay only if the tasks are “integral and indispensable” to workers’ principle job duties. State laws vary, with some imposing the same strict standard as federal law, while others are more permissive about which activities merit pay.

While some courts have examined the issue in the context of anti-theft security checks and workers changing in and out of protective gear, the application of wage laws to employer measures to prevent the spread of Covid-19 is without precedent.

“There’s no clean analogy in this area to the kind of pandemic circumstances we have now,” said Sachin Pandya, employment law professor at the University of Connecticut.

Federal-State Divide

The U.S. Supreme Court set forth the legal standard on pay for worker activities before and after shifts in a 1956 decision interpreting the Portal-to-Portal Act, an amendment to the FLSA that narrowed the activities for which pay is required.

More recently, the court applied that test in 2014 to determine that time spent in security checks at Amazon warehouses didn’t require pay under the FLSA, even though the screenings were mandatory and benefited the employer.

Courts applying state law, however, have sometimes viewed similar off-the-clock security checks differently. For example, the California Supreme Court ruled earlier this year that anti-theft screenings at Apple Inc. stores should be considered paid time because workers were under the company’s control.

Companies got the green light from the Equal Employment Opportunity Commission to test workers for Covid-19 before allowing them to enter the workplace due to the threat posed by an infected person. But whether workers must be paid for that time seems fated for the courts to decide.

“To the extent employees will have to line up to have their temperatures taken, the compensability of that time is going to be an issue,” said Lawrence Peikes, an attorney with the management-side firm Wiggin and Dana. “It may be a heavily litigated issue.”

Surveying State Laws

Employer-mandated temperature checks in response to Covid-19 very likely wouldn’t need to be paid under the FLSA, according to an analysis conducted by John Lassetter, an attorney at management-side firm Littler Mendelson.

In terms of state wages laws, Lassetter’s analysis predicted that temperature-check time would:

  • very likely not require pay in Alabama, Arizona, Delaware, Florida, Georgia, Iowa, Mississippi, North Carolina, South Carolina, Texas, Virginia, and other states that lack their own wage law or have adopted the FLSA and Portal-to-Portal Act;
  • probably not require pay in Indiana, North Dakota, New Hampshire, New Jersey, New York, and other states that have wage laws similar to the FLSA or that would look to federal law for guidance because they haven’t defined payable time;
  • probably require pay in Colorado, Connecticut, Illinois, Minnesota, Oregon, and other states with broader wage laws than the FLSA but where the issue hasn’t been tested in court; and
  • very likely require pay in Arkansas, California, Pennsylvania, Washington, Wisconsin, and other states with broader wage laws that have been tested in court.

That analysis would likely apply to other safety protocols, such as infection testing and health questionnaires, Lassetter said. Nevertheless, the longer workers are required to wait before undergoing safety procedures, the harder courts will look at whether they should have been paid, he said.

But measures like sanitizing uniforms and equipment is much closer to putting on or taking off work-related gear—often known as “donning and doffing"—which isn’t as clear a question, Lassetter said. Deciding if those activities are payable is very specific to the facts of the case and the law that’s being applied, he said.

Prison Safety

The officers in the Cook County case have been working between eight and 16 hours per day at a site with an extremely high Covid-19 exposure rate, said Cass Casper, an attorney with Talon Law representing the officers. That’s exactly the kind of circumstance that should warrant pay for time spent meeting safety protocols, which include sanitizing uniforms and equipment, he said.

A Cook County representative wasn’t immediately available for comment.

The Tenth Circuit applied the FLSA’s strict standard earlier this year and found that correctional officers at a New Mexico jail deserved payment for going through security checks at the start and end of their shifts.

Undergoing security screening and checking specialized equipment when entering and exiting the work environment are essential elements of the officers’ principal activities, namely “maintaining custody of inmates, searching for contraband, and providing security,” the circuit court said.

Overall, the question of whether employers need to pay workers for time spent undergoing temperature checks, Covid-19 tests, ensuring their masks and other equipment are clean, and taking other precautionary health-related measures before and after work is a complicated one, said Brett Bartlett, an attorney who counsels management for Seyfarth Shaw.

Employers have reasons to be conservative when deciding whether such measures are compensable, Bartlett said. The question probably won’t be decided for a year or two—when courts might sign off on companies not paying or possibly take a strict view of the law and give preference to employees who claim they were underpaid during challenging times, he said.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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