By Ethan Goemann and Noah Finkel
Employers have had to quickly pivot in numerous ways to keep their workplaces operating since the onset of the COVID-19 pandemic. One such way the workplace changed is through the introduction of COVID-19 screening tests for employees before they enter their employer’s place of business. Among other questions this spawned is whether such time is compensable under the FLSA and/or its state law equivalents.
While no court has ruled on whether such time would be compensable under any state law, some of which contain a broader definition of hours worked than does the FLSA, district courts have begun to issue decisions on the compensability of such time under the FLSA. Thus far, the majority of those courts have held that pre-shift temperature checks or COVID screenings, at least outside the healthcare setting, are not compensable under the FLSA.
This question most recently was analyzed by the Western District of Michigan in Howard v. Post Foods, LLC. In that case, the court dismissed the plaintiff’s claims for compensation for COVID-19 screening time because the plaintiff failed to provide evidence that such time was a principal activity in the defendant’s cereal manufacturing plant. Notably, the Howard court rejected plaintiff’s argument that the screening was indispensable to their job because part of that job was to produce cereal in a sanitary plant. “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.”
The Southern District of California reached a similar holding in Pipich v. O’Reilly Auto Enterprises, LLC. There, the court dismissed the claim of the plaintiff, a route driver, that pre-shift COVID-19 screening time was compensable because it found that COVID-19 screening was not a principal activity for the plaintiff under the FLSA.
The Howard and Pipich cases are the latest in a series of court opinions finding that pre-shift COVID-19 screening is not a principal activity for non-healthcare workers. See, e.g., Adegbite v. United States (“Preventing the coronavirus from getting into and/or spreading within the Institution is not integral to” the principal activities of correctional officers).
On the other hand, under DOL guidance, pre-shift COVID temperature checks are likely compensable if the check is “necessary” to the job to be performed, such as for a hospital nurse whose principal job activities include “direct patient care services.” Despite these generally positive developments, employers should bear in mind that this area of the law is still evolving and some states’ overtime laws take a more expansive view of compensable time.