US businesses resuming operations after coronavirus lockdowns are confronting uncertain legal terrain: whether they are obliged to pay workers for the time they spend submitting to health checks to ensure they are not infecting others.
Meatpackers such as Tyson Foods have already begun checking employees’ temperatures as they enter processing plants in an attempt to stop the spread of the disease. Ford said last week that it planned to do the same when assembly lines reopened at US auto plants; it will also ask workers to fill out a daily questionnaire to assess their own health. Starbucks executives laid out a similar routine for baristas, calling it “a partner pre-check” to “validate if they’re ready to work”.
The new measures raise the question of whether employers should pay workers for the time they spend adhering to them — with the answer likely to come from the courts.
The legal battle would recall past fights over whether the time workers spend putting on and taking off protective equipment, or undergoing searches to prevent theft, should be completed on or off the clock.
The stakes are high: when companies employ tens of thousands of employees on hourly rates, they gain substantial savings from uncompensated time, even when health checks are brief. The benefits increase the longer workers have to wait in line to have their temperatures scanned.
“Uncertainty creates litigation, and there’s never been any litigation over whether time spent on a temperature check is compensable time,” said Noah Finkel, a lawyer representing employers at Seyfarth Shaw.
The Fair Labor Standards Act governs how US workers are paid, setting the minimum wage and overtime rules. Some states, such as California, have put in place higher standards than the ones under federal law.
Litigation over employee wages and hours has increased as employment relationships in US workplaces have fractured, with companies classifying staff as independent contractors instead of employees or using employment agencies rather than adding to their own payrolls.
How US employers should proceed is unclear from past legal cases and may depend on the jurisdiction in which they are located. The US Supreme Court ruled in 2005 that employers needed to pay poultry workers for the time it took to change into protective gear.
While the US high court ruled in 2014 that Amazon warehouse workers were not entitled to pay for 25-minute security screenings, California’s state supreme court decided in February that Apple store workers should be paid for the time it took to perform security checks on their bags. Other law, meanwhile, applies for unionised workforces.
Mr Finkel noted that employers could end up adopting “a patchwork policy” on how they pay workers in different jurisdictions.
Patricia Smith, an attorney at the National Employment Law Project, said the pandemic would require courts to address whether the new health measures were integral to the work that workers did and whether they were akin to the safety procedures undertaken by workers in hazardous jobs.
“Given the unique circumstances of Covid-19, you should be paid for [the time],” she said. “Right now, every job in a production line is hazardous.”
Amazon began temperature checks at some of its sites on March 29, using thermal cameras. Before they clock in for their shifts, workers file past the device one at a time, lining up in lanes that mimic security lines at an airport.
Tyson, too, is installing new equipment to check employees for fevers. The Arkansas chicken processor bought 150 walk-through infrared temperature scanners in April. Tom Brower, Tyson’s senior vice-president of health and safety, said the scanners allowed for faster checks than handheld thermometers.
Tyson reached a $32m settlement eight years ago for claims that it did not pay workers while they changed into or out of protective gear, and for not allowing breaks. The United Food and Commercial Workers International Union, which has organised some of Tyson’s plants, said that while the walk-through scanners did not materially add to the working day, it was monitoring the time union members spent “adequately preparing for work with enhanced personal protective equipment, to make sure that they are paid for their time at work”.
The United Auto Workers union also plans to maintain a watchful attitude when US and Canadian auto plants reopen on May 18. UAW president Rory Gamble said on Tuesday that the company and union must together “follow these guidelines and self-reporting procedures we have worked out”, and that the union would “actively monitor and aggressively respond” to any health and safety problems.
The UAW has said it will oppose any threats to workers’ employment, pay or benefits if they are sent home sick, as well as pay cuts that result from working off the clock.
Ford said that it was still evaluating time and pay issues associated with screening. Starbucks did not respond to a request for comment.
“It’s an issue that a lot of workplaces are going to have to confront,” said Michael Hancock, an employee-side lawyer at Cohen Milstein. “This is going to have to be wrestled with soon and resolved quickly, or else it could turn into a real mess.”