Virus-Induced Fever Checks Pose Wage Dilemma for Businesses

Employers might be responsible for paying workers for the time it takes to record their body temperatures before entering the workplace, a measure some companies have implemented to mitigate the spread of the coronavirus, attorneys told Bloomberg Law.

The checks, which the Equal Employment Opportunity Commission recently said are allowable during the pandemic, could become expensive if businesses have to pay workers for the time spent on the checks, including queuing up and waiting for them. Walmart Inc., the largest private employer in the U.S., said it will pay its workers for the temperature check time.

Federal disability law typically prohibits businesses from doing temperature checks, so businesses considering the compensation logistics of such checks are in new employment law territory. The EEOC issued pandemic-related guidance permitting the checks if related to staunching the spread of Covid-19, the disease caused by the virus.

Legal observers disagree on whether employees should be paid for time spent on temperature checks under federal law. They said employers should also take state wage-and-hour laws into consideration for compensation decisions, citing similarities to cases involving pay for anti-theft security checks of workers’ bags and other pre- and post-shift tasks.

“Generally, I’m advising employers to look at the laws of the states, and where they operate, and how a decision to not compensate for that time will affect the morale of the employees, especially during this time,” Ogletree Deakins shareholder Kelly Cardin said. But others see the issue as being more straight-forward.

“I think we’ve all been flooded with this image of people waiting in line to get their temperatures checked,” Mike Elkins, founder of Florida-based MLE Law said. “Employees should be compensated if they’re waiting in line.”

Relative Comparisons

Some attorneys drew comparisons between temperature check waiting times and security check lines, or the time employees spend “donning and doffing” work-required protective gear.

The U.S. Supreme Court raised the bar in a 2014 decision in a lawsuit brought by Amazon.com Inc. warehouse workers, clarifying what kinds of pre- and post-shift tasks should be compensable under the federal Fair Labor Standards Act. The high court ruled that the time the workers spent in a queue to be checked for stolen items wasn’t an “integral and indispensable” aspect of their roles, and therefore shouldn’t be compensated.

Because temperature checks are prerequisites to allowing employees to walk in the building, they should be viewed as integral and indispensable to the workers’ roles, said Joshua Erlich, of Arlington, Va.-based Erlich Law Office.

“That said, there are plenty of cases involving protective gear where the courts have found the time noncompensable and there is no question that, in the strictest sense, these tests are not part of an employee’s principal job functions,” he said.

An analysis of whether these temperature checks would qualify as an “integral and indispensable” component of the roles requires fact-specific details, Howard Lavin, a partner with Stroock & Stroock & Lavan LLP in New York, said, and it’s challenging to predict whether workers would be entitled to wages for this time.

“As a result, it’s difficult to give bottom-line predictions in this space from afar. However, given the pandemic and the importance of having stores staffed by employees who are Covid-19-free, this presents a close question about whether these tests are integral and indispensable to the employees’ principal activities,” he said. He advised employers look to state laws instead, for more information.

The California Supreme Court recently ruled that Apple Inc. workers are entitled to pay for the time spent in anti-theft security check lines under its state wage laws. The Pennsylvania Supreme Court and a New Jersey federal court are currently pondering a similar question.

Uncharted Territory

The unclear answer to whether employees should be paid for the temperature checks could be related to the industries in which they’re being considered, said Daniel Katz, a senior staff attorney with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

“For generations, miners had to report to work, and had to put on protective equipment,” he said. “That was compensable time.” But waiting times aren’t usually considered in the retail industry, where the most that might be done when entering the workplace is perhaps putting on a “vest at Walmart,” or a similar step, Katz said.

“It’s just a different step because we haven’t had to do this before,” he said.

Susan Eisenberg, a Cozen O’Connor member, said she’s advising employers to be more conservative in interpreting the FLSA, and to take the position that the checks should be compensable.

“Employers have to pay employees for any time, under the FLSA, they suffer or permit to work,” she said. “The employers want to keep their workplace safe and open.”