I have blogged about working time issues involving COVID testing and screening many times and there seems to be no shortage of these cases coming down the pike.  On that note, I just read an interesting post in the Seyfarth Shaw blog by Noah Finkel and Ethan Goemann on this very issue.  To maintain the safety of their workplaces, as is their obligation under OSHA rules, many companies have been (and will continue to do so) employing COVID screening or testing of employees prior to their starting work.  The issue is whether that time is compensable working time, or whether it is a “simple” preliminary activity that does not merit pay.

There have been a series of decisions on this crucial (and potentially very expensive) question. A survey of the cases decided indicates that many Courts have determined that this pre-shift, preliminary rime is not integral or indispensable to the primary jobs of workers, and thus the time is not compensable.

For example, in a recent case, Howard v. Post Foods, LLC., the Court refused to award payment for COVID screening time.  The Court applied the integral and indispensable analysis and concluded that this screening activity was not a component of the worker’s principal job in the cereal manufacturing plant.  The Court refused to accept the argument that because cereal had to be produced in a sanitary environment, that fact somehow converted the time to working time.  The Court observed that “argument … conflates the goal of [Defendant’s] operations with Plaintiffs’ specific duties, which Plaintiffs have not described. It requires a fact-finder to speculate whether the absence of COVID-19 symptoms is integral and indispensable to Plaintiffs’ productive work.”

In another case in a different part of the country, a federal Judge in southern California arrived at the same conclusion.  In that case, Pipich v. O’Reilly Auto Enterprises, LLC., the Court examined a route driver’s claim for compensation for COVID screening.  Again, the Court held that such screening was not an integral part of the worker’s driving duties.  These cases follow on the heels of other cases finding that the screening is not compensable time because of the missing connection to the primary job.

The Takeaway

The key in these cases is, always, whether the preliminary activity has a direct and important connection to the primary job.  Even in the cereal company case, the court refused to draw a generic line between the need for a sanitary environment and paying for COVID screening.  Now, if the worker is a Nurse or health care worker, the connection between the screening and job may be clearer and compensability awarded.  Employers need to scrutinize that linkage objectively and keenly and then make a decision to pay (or not) based upon the facts.

“Integral and indispensable” is the catch phrase…