News & Publications

Cos. Should Consider Paying for Temperature Check Time

Law360

Michael S. Kun, Jeffrey H. Ruzal, and Carly Baratt, attorneys in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles and New York offices, co-authored an article in Law360, titled “Cos. Should Consider Paying for Temperature Check Time .” (Read the full version – subscription required.)

Following is an excerpt:

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.

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.” The FLSA does not, however, require compensation for time spent on “activities which are preliminary or postliminary to” an employee’s principal activities.

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.”

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.