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For many employees, returning to the workplace in the midst of the coronavirus pandemic has meant taking part in pre-shift COVID screening.
And it didn’t take long to start seeing lawsuits alleging that employees weren’t being paid for the time they spend undergoing such screening.
Walmart, for example, recently found itself on the receiving end of a $5 million class action suit that claims the retail giant has failed to compensate employees in Arizona for the time they take to complete pre-shift physical and medical examinations to check for COVID-19 symptoms before each shift. The examination was conducted on the premises of Walmart, was required by Walmart and was necessary for each employee to perform their work for the company.
In the spring of 2020, Walmart implemented a companywide policy that mandated COVID screening before each shift, according to the suit, which notes that workers were instructed to arrive before their scheduled shifts to complete the requisite questionnaire, screening and body temperature scan.
“Walmart’s workers continue to work through the pandemic. And they put in the time necessary to comply with Walmart’s COVID-19 policies so that the company’s stores can remain in operation,” according to the complaint. “But Walmart does not pay these employees for the time that the company requires of them. As a result, Walmart is unjustly enriched at the expense of its workers.”
Brian P. Walter, a Los Angeles-based partner with Liebert Cassidy Whitmore, expects to see more lawsuits involving employees who spend “off the clock” time taking part in screening and/or other tasks designed to help ensure a safe workplace.
“Any situation where an employer requires employees to show up on the premises before their work shift presents a risk for this type of claim, particularly where it is for the benefit of the employers.”
In most instances, COVID-19 screenings done on work premises are likely going to be considered compensable work time, said Walter.
In this case, Walmart appears to have paid affected employees for five minutes of the time they spend undergoing health screenings, he said. However, these employees claim these screenings actually require 10 to 15 minutes of their time.
Ultimately, employers bear the burden of ensuring that the time they provide workers for a pre-shift task matches the actual time employees spend on that pre-work undertaking, said Walter.
“Strong policies that provide for employees to request additional time that goes beyond the pre-set time are critical. Additionally, employers should consider routine audits or surveys to make sure the time provided to employees reasonably compensates employees for the time they actually spend.”
For organizations that also require employees to receive COVID vaccinations, these policies should also include language that addresses compensation for time spent getting vaccinated as well, added Michael Cardman, senior legal editor at XpertHR
“Under the federal Fair Labor Standards Act (FLSA) and many state wage and hour laws, employers that require employees to get vaccinated will almost certainly need to pay nonexempt employees their hourly wage and, potentially, overtime for time spent waiting to get vaccinated, time spent getting vaccinated and time spent after getting vaccinated waiting to determine there was no immediate adverse reaction.”
Employers might also need to pay workers for the time they spent traveling to and from vaccination sites if vaccinations are not provided on company premises, said Cardman.
That said, those that simply encourage employees to get vaccinated, and leave it up to workers as to when and how they receive the vaccination, “probably will not have to pay them for that time,” he said.
“Employers should be sure to take these requirements into account crafting and implementing their vaccination policies. A clause about compensable time for nonexempt employees should be included in any mandatory vaccination policy and considered as an option in any non-mandatory vaccination policy.”
About the Author
Mark McGraw is the managing editor of Workspan.