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New Legal Landmines, Courtesy of COVID

“Donning and doffing” has been part of the employment law lexicon since at least 1938, when the Fair Labor Standards Act (FLSA) mandated that employees be paid for their time spent putting on and removing protective gear, work uniforms and the like before and after their work day.

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There are exceptions, of course, and whether time spent donning and doffing is compensable hinges on the nature of the specific items being put on or removed.

In other words, there’s a bit of a grey area. And in that grey area lies potential for serious legal headaches.

Ask Tyson Foods, which paid $32 million to settle a suit revolving around whether it should compensate poultry plant workers for the time they spent donning and doffing protective clothing. All told, the Springdale, Arkansas-based food industry titan wound up making payments in the neighborhood of $1,000 per employee to approximately 17,000 current and former workers.

COVID-19 has altered the workplace in innumerable ways, including the introduction of health screenings, temperature checks and other tests that many employees must undergo as they arrive for work. The pandemic has also forced more employees to don personal protective equipment and spend additional time washing up their bodies and clothing when they arrive for work and when they leave for the day.   

Experts caution that we could see a spike in legal claims involving employees who might not have been properly compensated for the time they spend completing these tasks, and urge total rewards leaders to take the precautions necessary to avoid what could be a costly mistake. 

In fact, there are already cases with these types of allegations on the docket.  

Cook County, Illinois, for example, recently found itself on the receiving end of a collective and class action suit pursuant to the FLSA and the Illinois Wage Payment and Collection Act.

In the case of David Evans III et al. v. Thomas J. Dart et al., the plaintiffs claim the county failed to pay a group of correctional officers the requisite overtime wages for the time they spent before and after shifts washing their persons, uniforms and personal protective equipment. According to the suit, this time amounted to roughly 20 minutes to a half hour per shift. The plaintiffs also allege that the county didn’t pay the correctional officers a higher wage rate for volunteering to work with a COVID-positive population.

Ashley Cuttino, a shareholder in Ogletree Deakins’ Greenville, South Carolina office and co-chair of the firm’s COVID-19 litigation practice group, expects to see more allegations similar to those that Cook County currently faces.

“Because this is another novel issue raised by COVID, we anticipate claims will continue until the courts provide more definitive guidance on the issue,” Cuttino said. “Like everything else related to COVID, it’s a fact-dependent question.”

Indeed, there are several questions that employers should consider when determining whether to pay for employee time spent donning and doffing, and for undergoing health screening tests, in the midst of COVID-19.

For example, Cuttino suggests evaluating whether temperature screenings are “integral and indispensable” to the employer’s business within the meaning of the FLSA.

“In cases filed to date, the plaintiff’s bar has alleged this time is arguably compensable under this analysis,” Cuttino said. “The defense bar has argued that this time is more akin to pre- and post-shift security procedures that are not related to an employer’s principal activity.”

With respect to health screening, the organization must also weigh why they are performing these tests.

“Does the local jurisdiction require the screening? If so, the time may not be compensable under prior case law. In addition, if the goal of the screening is for the good of the community, not the employer directly, the time spent screening is arguably incidental to the business of the employer.”

An employer should also give thought to the amount of time needed for screening and how it will be accomplished, Cuttino said.

“Is the screening performed at home prior to departure by the employee or at the work site by a third party? If the temperature screening is quick and efficient, the time spent will likely fall into the de minimis exception to the FLSA, if the FLSA is in fact applicable.

“Similarly, if non-exempt employees undertake screening activities at home, the time is likely not compensable under the FLSA,” Cuttino said. “This activity is comparable to at-home clothes changing activities, which the Department of Labor deems non-compensable.”

Finally, employers and compensation leaders looking to mitigate the risk of costly COVID-related wage and hour claims must consider what type of screening the organization wants to implement.

“Will the screening be conducted at home or at work? If the screening will be conducted at work, it is important to have a quick and efficient system for screenings, so the de minimis exception will arguably apply if challenged,” Cuttino said. “And it’s also important to check local and state laws respective to this issue.”

About the Author

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Mark McGraw is the managing editor of Workspan.


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