The Department of Labor’s Wage and Hour Division launched the Essential Workers, Essential Protections initiative. Part of this initiative goal is to ensure that workers know about the wage and hour laws that protect them and the related COVID-19 employer obligations. In particular employers will need to plan for FLSA compensatory time related to mandatory health screening activities.
As people return to an office environment there are several health and wellness scenarios that workers, advocates, and employers may face. These guidelines released as of April 28, 2021 clarify employee FLSA compensable time for tasks like temperature checks, health screenings, and COVID-19 tests and the employer obligations.
Self-health screening
If an employer implements a mandatory health screening process for COVID-19 that employees have to complete during the workday, the employer must pay the employees for that time. All time between the start and finish of an employee’s workday must be paid unless it falls within one of the exceptions in 29 C.F.R. Part 785, such as bona fide meal breaks and off-duty time. WHD regulations require that employees be paid for time spent waiting for and receiving medical attention required by their employer during the workday. The same logic applies to a COVID-19 mandatory health screening required by the employer during the employee’s workday.
Streamline Health Screening Surveys with Attestation Tools
Many jurisdictions require employers to screen the health of employees; (Littler), often as they begin a shift. California orders require employers to develop and implement a process to screen employees for and respond to employees with COVID-19 symptoms. These health screening steps, including temperature checks and asking employees about COVID-19 symptom.
OnePoint HCM attestation surveys make it easy to streamline the health screening process. The Attestation tool kit was enhanced in 2019 to be triggered at punch in OR punch out so employers can ask employees relevant pre or post shift questions.
Attestation Surveys have several advantages over manual collection or third-party apps.
- Convenient for employees - employees simply have a new step added to the timekeeping or self-service process.
- Better adoption rates - Employees wont have to download a new app or worry about yet another login to remember.
- Flexibility - Trigger the health questionnaires from the OneTouch time clock web clock or mobile timesheet.
- Attestation surveys can be set up for punch-in and punch-out.
- Configure rules and workflows - Route employees in real-time based on their responses to the questions.
When developing employee wellness check questions, and before including any health-related questions in OnePoint HCM Attestation, please consult with your legal counsel to ensure you are compliant with applicable privacy laws and regulations.
Temperature checks
Temperature Checks Before the Workday
Temperature checks are another way to screen employees. When an employer requires all employees to take their temperature in order to screen for people who might have COVID-19 before entering the job site, employers may or may not be required to pay employees for time spent getting temperatures taken. Under the FLSA, an employer is required to pay for all hours an employee works, including for time before beginning normal working hours if the task required to be performed is necessary for the work that the employee does. For many employees, subject to a mandatory temperature check before they begin work must be paid because it is necessary for their jobs.
For example, if a nurse who performs direct patient care services at a hospital is required to check her temperature upon arrival at the hospital before her shift, the time that she spends checking her temperature upon entry to the worksite is likely compensable because such a task is necessary for her to safely and effectively perform her job during the pandemic.
Temperature checks after workday begins
When the employer requires the employee to have a temperature check onsite to screen for people who might have COVID-19 after the employee has started work for the day, the time spent waiting for and undergoing the temperature check must be paid. All time between the start and finish of an employee’s workday must be paid unless it falls within one of the exceptions in 29 C.F.R. Part 785, such as bona fide meal breaks and off-duty time. WHD regulations require that employees be paid for time spent waiting for and receiving medical attention required by their employer during the workday. The same logic applies to a temperature check required by the employer during the workday.
COVID-19 Testing
COVID-19 testing during workday
When an employer requires COVID-19 testing during the workday, the employer must pay the employee for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours.
Testing on days off before return to work
Where the employer requires employees to undergo COVID-19 testing on their day off before they can return to the jobsite, employers may or may not be entitled to FLSA compensatory time for time spent for testing. Under the FLSA, employers are required to pay employees for all hours that they work, including for time on a vacation day if the task the employee is required to perform is necessary for the work the employee is paid to do. For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic.
For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic.
Use Checklists for Employee Self-Reporting
In February, OnePoint released a solution for employee vaccine tracking via a PTO request and checklist workflow. The same checklist workflows can be used for COVID-19 test reporting. For employees required to get a COVID-19 test, you can ask them to report their results using a checklist task. Logging into the self service portal initiates the action. Test results can be submitted by taking a picture or loading a scan of the test results. This makes it easy to submit from home or upload the printed results. E-signature rules can validate the submission with a date and time stamp. HR can use file permissions to restrict access to COVID-19 test results to specific people in the organization like “system administrator only”.
Any test results need to be kept as confidential as possible. There are obligations for employers to tell other employees if they were in contact with someone with COVID, but asking about illness, if not done correctly...like specific questions regarding COVID symptoms, could be a violation of the Americans with Disabilities Act or similar disability discrimination law FEHA. Consult with your legal counsel to ensure you are compliant with applicable privacy laws and regulations.
Additional Wage and Hour Division Resources
The WHD also published a blog article to underscore the initiative and issued an FAQs document that address pandemic-related scenarios that workers, advocates, and employers may face. This FAQ document answers questions about health and safety guidelines, and also includes questions about employer obligations for pay, break time for nursing mothers, and sick and family and medical leave.
This article is for informational purposes only and is based on US Department of Labor guidance as of April 28, 2021 and is subject to change. The information does not constitute legal advise please consult with your legal counsel to ensure your policies are compliant with applicable wage and hour laws and regulations.
