As part of their return-to-work plans, many employers are instituting daily temperature checks, questionnaires, and other measures intended to determine whether employees are reporting to work with symptoms consistent with COVID-19. While such measures are generally permissible, employers should consider whether time spent by employees complying with these requirements is compensable working time under federal and state wage payment laws.
In general, time spent by employees on tasks essential to performance of the job must be recorded and paid as working time. In some circumstances, the U.S. Department of Labor and some federal courts recognize a “de minimus” rule, meaning that very small amounts of time outside of normal working hours would not need to be recorded or paid. In other words, a temperature check that takes a few seconds may not be compensable working time.
Employers can avoid these issues by having employees clock in before being asked to participate in COVID-19 screening activities. We anticipate that plaintiffs’ attorneys will be looking to file class and collective action lawsuits based on employer pay practices associated with the current pandemic.