Time spent undergoing health screenings could be compensable under the FLSA
By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau
IN FOCUS: With entryway health screenings becoming the norm due to the pandemic, questions are likely to arise about whether agencies must pay Fair Labor Standards Act nonexempt employees for time spent going through health screenings, Joanna Friedman, a partner at the Federal Practice Group, told cyberFEDS®.
However, the answer is unclear because neither the regulations nor case law specifically address screenings in the context of a pandemic. While those categorized as FLSA exempt would only be paid their normal salaries, to determine whether time spent going through health screenings for FLSA-nonexempt employees is compensable, agencies must conduct a "very fact specific" analysis that "depends on the employee's work setting and job duties," she explained.
Integral to principal activities
Under the Office of Personnel Management's FLSA regulations -- which are applicable to most federal employees -- agencies must pay FLSA nonexempt employees for hours of work, which includes time spent performing preparatory or concluding activities that:
- Are closely related to an employee's principal activities.
- Are indispensable to the performance of the principal activities.
- Add up to more than 10 minutes per workday. 5 CFR 551.412 (a)(1).
However, preparatory or concluding activities that are not closely related to the performance of the principal activities are non-compensable. 5 CFR 551.412 (b).
The Supreme Court addressed whether security screenings were an integral part of warehouse employees' principal activities inIntegrity Staffing Solutions, Inc. v.
Busk, 114 LRP 52146 (U.S. 2014). The court found that to be compensable, an activity must be integral and indispensable to a principal activity, but time spent waiting to go through and undergoing security screenings was not an integral and indispensable part of employees' principal activities because the employer could have eliminated the screenings without impairing employees' ability to complete their work, Friedman said.
The court also explained that the time battery plant employees spent changing in and out of clothes and showering was compensable because the chemicals were toxic and the employer conceded that these activities were indispensable to performing productive work. In contrast, the time poultry-plant employees spent waiting to don protective gear was not compensable because such waiting was two steps removed from the assembly line work, Friedman noted.
"Thus, whether time spent donning [personal protective equipment] and undergoing health screenings would be compensable would likely hinge on how long the process took, how dangerous the threat of COVID-19 poses to the employees, the performance of their principal duties, and the nature of exposure they would be subjecting themselves and others to."
For example, employees who have to undergo health screenings because their duties require interaction with the public, coworkers, or vulnerable populations would likely have a stronger case than employees who do not have interaction with others, Friedman said.
Health screeners and related staff
Some employees are required to perform screening tests that would likely consist of preparatory work necessary to ensure other employees can effectively carry out their duties, she said.
FLSA nonexempt employees who are performing health screenings also have "a strong case" that donning PPE is compensable time because they probably could not screen employees effectively unless they are protected sufficiently, she said.
Similarly, FLSA-nonexempt employees who are required to report early for certain preparatory work, such as distributing protective gear and preparing screening areas, would be entitled to pay for that time because generally those activities would be considered principal activities or integral to principal activities, she added. See 29 CFR 790.8.
Waiting in line
While waiting in line for screenings to be let into the building, FLSA nonexempt employees may decide to answer work emails on the phone.
"An employee who is answering work emails while waiting in line to be screened would likely have to be compensated for such time," Friedman said, "if responding to emails is necessary to the performance of that employee's job."
Those concerned about being paid for all hours worked should document how long any health screening or PPE donning process takes, the procedures and the agency's reasons for such procedures, such as to ensure performance of job duties, reduce the risk of disease, and protect employee health and safety. This will make a stronger case than if the agency simply states it is for the "employees' convenience or as a minimal precaution," she advised.
Other FLSA issues
The pandemic could raise other FLSA issues, such as pay for work being done remotely, Friedman said.
Non-exempt employees should generally be paid the same amount for work done remotely, she said, while salaried exempt employees should generally be paid their full salary in any week in which they perform any work, she added.
In contrast to federal law, certain state laws -- such as those in California, Arizona, and Nevada -- require security screenings to be compensable. Even though "there is no definitive guidance on this issue," OPM has stated that federal employees are not subject to state minimum wage laws because under the "Supremacy Clause of the Constitution, Federal law supersedes conflicting state law," Friedman said.
"Thus, it is likely that FLSA guidelines on compensable time would prevail over any more broad state law interpretation of compensable time," including FLSA hours of work and overtime.
June 17, 2020
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