As states relax their stay-at-home orders and non-critical businesses resume operation, employers are taking preventative measures to protect their workplaces and their employees, such as measuring employees’ temperatures and other symptom checks. State and local public health orders may even require such measures of employers.
Due to the community spread of COVID-19, the Equal Employment Opportunity Commission (EEOC) has said that employers may measure employees’ body temperatures as they enter the workplace, something that would not normally be allowed under the Americans with Disabilities Act (ADA).
Whether employers have to pay their overtime-eligible (non-exempt) employees for time spent having their temperatures checked is a fact-specific analysis that may differ based on your organization’s circumstances and location. Federal and state courts have not addressed this question. But, it could be the subject of future litigation based on what employers do now.
Under federal law, the determination rests on whether having their temperatures checked is part of the employee’s “principal activity.” In a 2014 case, Integrity Staffing Solutions v. Busk, the U.S. Supreme Court ruled that time spent in post-shift security checks for Amazon warehouse workers was not compensable under the federal Fair Labor Standards Act (FLSA). The Court said security checks were not “integral and indispensable” to the workers’ jobs. Applying this narrow interpretation, temperature checks would not normally meet this the standard for most jobs. However, the situation with COVID-19 is anything but normal, and measuring employees’ temperatures may be seen as akin to situations where employees must put on protective gear to safely perform their jobs, which have been found to be compensable.
Layered on top of the federal law is state law, which varies on the topic. Private employers in Colorado must contend with the requirements of COMPS Order #36, which requires them to pay non-exempt employees for security or safety screening if it takes over one minute. Public employers in Colorado and employers in Arizona, Utah, and Wyoming do not have as strict of a timeline to contend with but still must analyze whether this time is compensable given their circumstances.
The safest approach is to pay non-exempt employees for this time. Temperature screening conducted efficiently should not add much time to an employee’s workday. If you have questions about whether to pay your employees for time spent in temperature checks, discuss your situation with one of our employment law attorneys.