Do Employers Need to Pay Employees for Pre-Shift Temperature Checks?

In an effort to determine if their employees have symptoms of COVID-19, many employers have elected to conduct pre-shift and/or post-shift temperature screenings.  Although temperature screenings would normally be impermissible medical examinations, the U.S. Equal Employment Opportunity Commission has advised that such screenings are allowed during the COVID-19 pandemic.  Pursuant to the Pennsylvania Department of Health’s April 15, 2020 Order, “life-sustaining” businesses in Pennsylvania also need to implement pre-shift temperature testing if the business has been exposed to a person who is a probable or confirmed case of COVID-19.  Although many employers have given thought to implementing testing, not many have considered whether the time spent waiting for and undergoing such testing is compensable.

Unsurprisingly, there have been no court decisions since the onset of COVID-19 that address this specific question.  A United States Supreme Court decision from 2014, however, is instructive.  In Integrity Staffing Solutions v. Busk, the Court considered whether post-shift security screenings for employees at an Amazon warehouse were compensable.  The Busk Court held that, under the federal Fair Labor Standards Act (“FLSA”), an employer is only required to pay an employee for time spent performing pre-shift and post-shift activities that are “integral and indispensable” to the employee’s principal activities.  The Court clarified that “integral and indispensable” activities are those that are both “necessary to the principal work performed” and “done for the benefit of the employer.”  In holding that the post-shift security screenings were not “integral and indispensable” for the employees at issue, the Court noted that the screenings were not intrinsic to retrieving products or packaging them for shipment and that the employer could have eliminated the screenings without impairing the employees’ ability to do their work.

If an employer is sued by its employees for unpaid wages stemming from pre-shift or post-shift temperature screenings, it can point to Busk to argue that such time is non-compensable.  It is far from clear, however, if a court would find that temperature screenings done during a public health crisis are sufficiently similar to security screenings done in the normal course of business.  Ultimately, employers who implement pre- and/or post-shift temperature testing must consider their potential exposure in not compensating non-exempt employees for time spent waiting for and undergoing such testing.  Wage and hour lawsuits, particularly of the class action variety, are costly and can result in liquidated damages and attorney’s fees paid to prevailing plaintiffs.

For questions about wage and hour issues or any other labor and employment topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on all key labor and employment law developments, subscribe to our blog and follow us on social media.