After sheltering-in-place, remote working, and business closures, employers across the country have started planning to bring employees back to work. The first item of business is how to ensure the workplace is safe for employees and the general public. For this, many employers are turning to employee health checks.

As the CDC suggests, an employer may ask employees to take their temperature either (1) before reporting to work, on their own, or (2) before entering the workplace by the employer (with appropriate precautions). Whichever method used, it presents a risk to employers beyond health and safety: wage-and-hour litigation. The Fair Labor Standards Act (FLSA) requires employers to compensate hourly, non-exempt employees for all time spent working. Does “working time” extend to the time it takes for a thermometer to beep?

One consideration is whether such time is de minimis, or time that is so “insubstantial or insignificant” that may be disregarded as compensable time.* A home thermometer could take anywhere from a few seconds to a few minutes, depending upon the type of thermometer used. A touchless forehead reader may take mere seconds, but employees could be stuck waiting in line for much longer if tested at work with other employees. To determine whether time is de minimis, courts commonly employ a three-factor test**:

1. the practical administrative difficulty of recording the additional time;
2. the size of the claim in the aggregate; and
3. whether the [employees] performed the work on a regular basis.

This is not a one-size-fits-all exception. For example, the California courts have rejected the principle.***

Another consideration is whether such time is spent on a “principal activity” (such as donning and doffing protective clothing and gear), which is generally compensable, or merely “preliminary” (such as waiting to change into protective clothing), which is generally not compensable.**** Complicating this issue is that employers are generally prohibited from pausing compensable time or requiring employees to clock out (excluding lunch periods) and wait around once an employee’s workday starts. Therefore, if the employee’s compensable time starts with a temperate screening, all of the employee’s time afterward may be compensable, even if otherwise “preliminary.”

Ultimately, whether an employer must pay for the time spent taking a temperature or waiting in line depends upon an employer’s specific policies and practices. At the outset, employers may mitigate litigation risk by implementing a policy with this very issue in mind. For example:

• Employers may consider a flexible policy that recommends voluntary home health checks as part of an overall wellness message, including frequent handwashing, social distancing, and covering coughs and sneezes.
• Employers with onsite checks may consider taking steps to substantially reduce any wait time, such as staggering the start of shifts or installing multiple screening stations.
• Employers with onsite checks may shift the goal of the policy to deterrence rather than screening. By making such checks sporadic and occasional, it could be a tool to deter sick employees from coming to work but would be less effective as a screening measure.

For various reasons, an employer may wish to implement a less permissive policy or to take a more risk-averse approach to avoid claims, and therefore decide to compensate employees for health checks and the time waiting for the result. This can be accomplished by adding sufficient time to employees’ daily timesheets or asking employees to record the time spent measuring their temperature or standing in line.

* 29 C.F.R. 785.47

** Castaneda v. JBS USA, LLC, 819 F.3d 1237, 1243 (10th Cir. 2016), as amended on denial of reh’g and reh’g en banc (May 3, 2016)

*** Troester v. Starbucks Corp., 5 Cal. 5th 829, 848, 421 P.3d 1114, 1125 (2018), as modified on denial of reh’g (Aug. 29, 2018)

**** See IBP, Inc. v. Alvarez, 546 U.S. 21, 40, 126 S. Ct. 514, 527 (2005)