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Paying Your Employees For Temperature Checks - What’s the Legal Scoop?

By Roni Davis

March 14 2022 - With the new emphasis on temperature checks, PPE guidelines, and other pandemic-related changes to the work environment, century-old questions about which of these procedures are compensable and not compensable have resurfaced. Though the particular situation - the COVID pandemic - is new, the underlying questions regarding compensability are not.

Whether or not you have to compensate employees for the time they spend taking their temperatures, and other health screenings depends on a few factors, including when and where they perform the screening. This post will walk through the specifics and help bring clarity to these somewhat murky legal waters.

Historical Precedent: The Fair Labor Standards Act (1938) and Portal-To-Portal Act (1947)

If there is a federal precedent for whether or not temperature checks are compensable, it would be found in the FLSA and the follow-up Portal to Portal Act, which defined what ‘compensable time’ actually is. Additionally, specific state labor laws elaborate on compensable time, but more on that later.

According to the laws, employers must pay employees for preliminary and postliminary activities that are "integral and indispensable" to the principal activities of the job. Let’s unpack that.

Preliminary

In this case, preliminary can be interpreted as meaning "pre-shift." It covers any activities that happen before starting the "principal activities" of the job.

Postliminary

It follows that postliminary means "post-shift," or any activities that follow the principal activities of a job.

Principal Activities

To be a principal activity, the activity must (1) be required by the employer, (2) be essential to the performance of an employee’s duties, and (3) must be performed primarily for the employer’s benefit.

So, the question remains - do temperature checks apply here?

State-Mandated Temperature Screenings

Temperature screenings are a part of some states’ return-to-work policies. In this case, if the state requires temperature checks for businesses to operate, they would be considered both preliminary to principal activities and a principal activity in and of itself.

Therefore, pre-shift and during-shift temperature screenings are compensable if the state requires them for businesses to operate.

Other Considerations for the Compensability of Temperature Checks

In states where temperature screenings are not mandated for employees to return to work, it is still possible that a court could find temperature checks a preliminary activity and thus compensable.

Depending on the industry, a business's employees may be in close contact with one another or with customers. In situations where there is a higher risk of COVID transmission, it can be argued pre-shift temperature checks would fulfill two out of the three requirements of principal activities.

  1. Temperature checks would be necessary for employees to carry out the principal activities of a job if employees would be in close contact with each other or with customers. Temperature checks would be implemented to prevent an outbreak of infection within the employee population, which makes temperature checks:
  2. Performed primarily for the employer’s benefit, as an outbreak of COVID-19 would force a business’s operations to be temporarily shut down.

Therefore, a court could see a clear justification for the compensability of temperature checks taken directly before the start of the shift and during a shift.

When Are Temperature Checks Not Compensable?

According to the above reasoning, temperature checks performed after a shift or before a commute to work would not be compensable. If an employee screens themselves at home before commuting to work, there is a procedural gap between the screening and the start of the shift. Commutes are not compensable under the 1947 Portal-To-Portal Act. Therefore, actions performed before a commute to work are also not compensable.

Temperature checks are only compensable when deemed preliminary activities and performed directly before starting a shift. This also means that temperature checks taken at home, on days off, and when on vacation are also not compensable, as they are not preliminary activities in these cases.

The Legal Scoop

Hopefully, this post has clarified any confusion regarding the compensability of temperature checks. Though federal legislation does not address this issue directly, employers can parse out whether or not temperature checks are compensable based on interpretations of the FLSA and subsequent Portal-To-Portal Act.

About the Author

Roni Davis

Roni Davis is a writer, blogger and legal assistant operating out of the greater Philadelphia area. She writes for Stan Gregory, a worker’s compensation lawyer in Mount Laurel, NJ.



 
 
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