The other day I went to the eye doctor and, before I could go in, an employee checked my temperature. This phenomenon is going to become perhaps a constant fact of life when businesses open, employees return to work and employers want to be sure that they are virus-free and the workplace is safe. That is all well and good but, for employers, the issue arises of whether submitting to such a check is compensable time. That is an uncertain legal issue, for now.

The EEOC has asserted that conducting such checks will not violate the Americans With Disabilities Act, but the Fair Labor Standards Act (or a particular State law) may be different. This issue will come to the forefront especially if employees have to spend several minutes waiting their turn for the check. The FLSA states that activities which are an “integral and indispensable part of the principal activities” of an employee are also compensable. If the employee cannot perform his “regular” job without first engaging in the preliminary activity, then the preliminary activity becomes integral and indispensable.

A starting point for analysis is whether a particular activity is compelled by the employer and for its benefit and whether the principal activity (i.e. regular job) cannot be performed if the preliminary activity is not performed. For example, in a decades old Supreme Court case, where butchers working in a slaughterhouse had to first sharpen their knives, that activity was ruled integral to the main job and compensable. In a more recent case, the US Supreme Court held that Amazon workers going through post-shift screenings to stop theft were not entitled to pay for that time because the screenings were not the employees’ principal activity nor integral to their picking and packaging of Amazon product orders.

An arguable case can be made that temperature screenings protect the workplace against an extreme danger, which could infect the entire workplace, so they are for the employer’s benefit. In this light, such screenings may be analogized to mandating that employees wear protective gear, in order to protect them and other workers; such donning and doffing activities have been held compensable many times.

The counter to that is that catching the virus has, ostensibly, nothing to do with the job being performed. It is not a risk that is confined to or inherent in any particular occupation (excepting health care) but rather is a risk applicable to anyone as people might catch the disease anywhere and from anyone, not just, or only, at work. Thus, a court might rule that there is not the direct linkage to work or the particular job(s) that trigger the duty for an employer to compensate. If the screenings are required by local/county/state health authorities, that might undercut the argument for compensability and there are cases standing for this proposition, albeit in different contexts.

The Takeaway

This is an unsettled question which a court, or courts, may ultimately decide. In that vein, I can see a court coming down on either side of the question. One thing I do know—you don’t want to be the first employer who provides the test case for all other businesses to be guided by. One option may be to pay a designated amount of time, e.g. 10-15 minutes, whether the line is short and the screening takes two minutes or the line is longer and it takes more time. That way, the employer gets out in front of this thorny, vague issue in a proactive manner and provides itself with a defense based in reasonableness and good faith.

Spend a nickel to save a dollar…