By Michael Kun, Jeffrey Ruzal and Carly Baratt

Law360 (June 9, 2020, 4:42 PM EDT )

Michael Kun

Jeffrey Ruzal

Carly Baratt

As states across the country start to reopen their economies after COVID-19 shutdowns, many businesses are likewise preparing to have employees return to work. 

However, before reopening, businesses will need to comply with numerous state and local protocols designed to ensure the health and safety of employees and consumers, including social distancing, maximum occupancy and one-way flow.

Even if not required, many employers are instituting employee temperature checks upon arrival at the workplace. While the U.S. Equal Employment Opportunity Commission recently endorsed the use of temperature checks during the pandemic, such screenings could potentially run afoul of the Fair Labor Standards Act and state wage and hour laws if employers do not pay their workers for the time they spend submitting to temperature screening, particularly where there is potentially substantial waiting time in doing so.

The FLSA provides that "the principal activity or activities which an employee is employed to perform," are compensable, including tasks completed outside a regularly scheduled shift that are an integral and indispensable part of the principal activities.[1]

Principal activities are those the employee is employed to perform and "include any work of consequence performed for an employer, no matter when the work is performed."[2] The FLSA does not, however, require compensation for time spent on "activities which are preliminary or postliminary to" an employee's principal activities.[3]

An activity is integral and indispensable within the meaning of the FLSA "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."[4]

While this is a fact-dependent analysis, courts have determined that certain activities will satisfy this standard, and are thus compensable (1) if the activity is required and is for the employer's benefit; (2) if undertaken to prepare for the performance of the principal activities; or (3) if intended to protect the employee against unusual workplace dangers.[5]

Some activities that have been found to be compensable time include:

• Donning and doffing of nongeneric protective gear at the workplace before performing work in a lethal atmosphere;[6]
  
  
• Detention officers' security screening, lasting up to 11 minutes, and checking keys and equipment in and out;[7]
  
  
• A slaughterhouse employee's knife sharpening;[8]
  
  
• A radiological technician's powering up and testing of an X-ray machine;[9]
  
  
• A K-9 police officer's feeding, walking and training of his dog;[10] and
  
  
• Lead-acid battery plant employees' showering and changing clothes at the workplace to prevent lead poisoning as a result of their exposure to toxic materials used in the manufacturing process.[11]

In contrast, standard pre- and post-shift security procedures that are not related to employees' principal activities are not considered compensable time under the FLSA. In Integrity Staffing Solutions Inc. v. Busk in 2014, the U.S. Supreme Court held that Amazon.com Inc.'s post-shift anti-theft employee screenings were neither a principal activity nor integral and indispensable to the retrieving or packaging of Amazon's products.[12]

Integrity Staffing Solutions notwithstanding, federal and state laws may differ on whether or not employee security screening time is compensable.

For instance, earlier this year, the California Supreme Court held in Frlekin v. Apple Inc. that an employer must pay employees for time spent waiting and undergoing required exit searches of their personal items and devices, reasoning that such searches primarily serve the employer's interests (i.e., to detect and deter theft) and are highly controlled by the employer — employees must take specific movements and actions during the searches.[13] Other jurisdictions, including Pennsylvania and New Jersey, are also expected to address this issue.

Workplace temperature screenings could be found to constitute a preshift activity to protect against a heightened workplace danger and/or an activity undertaken for the employer's benefit, though it does not appear that this particular scenario has previously been contemplated by courts or the U.S. Department of Labor.

Heightened workplace dangers have previously been considered with respect to the employees who are themselves at potential risk on account of the job they are tasked to perform. While COVID-19 does not necessarily present the same type of inherent danger, such as working in a nuclear power plant, it arguably presents a palpable safety risk for co-workers who could be potentially exposed to the life-threatening virus.

Mandating temperature screening to help avoid spread may, at least arguably, be similar to requiring employees to don protective gear at the workplace, as both are employer-imposed prerequisites intended to protect the workforce.

However, because the potentially unsafe working conditions here are not a direct byproduct of the work performed by the employees, i.e., the risk of contracting COVID-19 is not inherent in or isolated to the workplace but rather is a risk common to the public at large that can affect anyone, whether at work or not, courts might not consider temperature checks to reach the level of importance to an employee's principal activities such as the U.S. Supreme Court did in Steiner v. Mitchell, or the U.S. Court of Appeals for the Ninth Circuit did in Alvarez v. IBP Inc.[14]

Also potentially relevant is that many employers are implementing temperature checks due to state and local recommendations and in some cases, requirements.

In Bonilla v. Baker Concrete Construction Inc., the U.S. Court of Appeals for the Eleventh Circuit held that time spent by construction workers going through security screening on their way to the work site inside an airport was not compensable under the FLSA in large part because the screening was required by the Federal Aviation Administration, and the employer "did not primarily — or even particularly — benefit from the [FAA-required] security regime."[15]

Under this reasoning, courts may conclude that even companies that voluntarily temperature screen employees need not compensate nonexempt employees for such time because these screens are aimed at preventing the further spread of the disease for the sake of employees, their families and the general public, whereas any benefit to an employer is arguably incidental. 

Viewed another way, however, an employer's implementation of health checks might be considered integral and indispensable because the risk of exposure to a highly contagious and potentially fatal virus is arguably not an ordinary risk of employment for anyone other than a limited group of medical professionals and others working in hospitals and some health care settings.

The bottom line is that there is presently no clear answer. Because this is a novel issue that is not yet settled, employers wishing to avoid risk would be wise to consider compensating nonexempt employees for health check-related time.

In addition, employers with unionized workforces should consult applicable collective bargaining agreements, or CBAs, before deciding whether to compensate employees for temperature check time. Section 3(o) of the FLSA provides that time spent "changing clothes or washing at the beginning or end of each workday" is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to "the express terms or by custom or practice" under a CBA.[16]

While the donning and doffing analysis may arguably be analogous to temperature checks, it is unlikely that a court would extend the Section 3(o) exception to temperature checks given the exclusion's text and legislative history unless there is language that the employer can point to in its CBAs that would support such a position.

Whereas the version of Section 3(a) originally introduced permitted an employer and employee to bargain away any activity performed by an employee provided that it was contained in the express terms, or was a custom or practice of a CBA, the final version limited the exclusion to just the time spent by the employee in changing clothes and cleaning their person.[17]

With that said, even if temperature check time definitively constitutes an activity that is preliminary to an employee's principal activities and is thus not compensable under the FLSA, it may nonetheless constitute hours worked if the time is considered time worked under the employer's CBA.

While it is unlikely that many existing CBAs expressly carve out temperature check time, a CBA could contain language to the effect of that pre- or post-entry activities required by law are noncompensable or some other equally broad language that could encompass time spent waiting for and undergoing a temperature check.

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Michael S. Kun is a member and co-chair of the national wage and hour practice group at Epstein Becker Green.

Jeffrey H. Ruzal is a member at the firm. 

Carly Baratt is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 29 U.S.C. § 254(a)(1), IBP, Inc. v. Alvarez , 546 U.S. 21, 30 (2005).

[2] 29 C.F.R. § 790.8.

[3] 29 U.S.C. § 254(a)(2).

[4] Integrity Staffing Sols., Inc. v. Busk , 547 U.S. 27, 33 (2014).

[5] Perez v. City of New York , 832 F.3d 120, 124 (2d Cir. 2016).

[6] See, e.g., Alvarez v. IBP, Inc. , 339 F.3d 894, 903 (9th Cir. 2003).

[7] Aguilar v. Management & Training Corp. (10th Cir. 2020).

[8] Mitchell v. King Packing Co. , 350 U.S. 260, 262 (1956).

[9] Kosakow v. New Rochelle Radiology Assocs., P.C. , 274 F.3d 706 (2d Cir. 2001).

[10] Reich v. N.Y.C. Transit Auth. , 45 F.3d 646 (2d Cir. 1995).

[11] Steiner v. Mitchell , 350 U.S. 247, 256 (1956).

[12] 547 U.S. 27 at 34.

[13] See Frlekin v. Apple, Inc. , 457 P.3d 526 (Cal. 2020).

[14] See Dinkel v. MedStar Health Inc. , 99 F. Supp. 3d 37, 42-43 (D.D.C. 2015) (distinguishing battery-plant employees in Steiner from hospital workers with certain uniform maintenance activities that were important to the hospital's infection control policy but were not essential to performing their jobs safely, as evidenced by the employees' willingness to bring dirty uniforms home).

[15] 487 F.3d 1340, 1344 (11th Cir. 2007).

[16] 29 U.S.C. § 203(o).

[17] See U.S. DOL Wage and Hour Division Administrator's Interpretation No. 2010-2 (June 16, 2010), available at https://www.dol.gov/agencies/whd/opinion-letters/administrator-interpretation/flsa/2010-2.

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