At the beginning of the pandemic, many employers began to require employees to be screened for COVID-19 symptoms prior to starting work. Common screenings include daily temperature checks and symptom questionnaires, as well as questions about recent travel or recent exposure to COVID-19. Predictably, lawsuits have started to surface by employees alleging state and federal wage violations due to non-payment of wages for time spent undergoing mandatory employer screenings. For example, in federal court in California, a class action lawsuit was filed in March, 2021 against a sporting goods retailer. In the lawsuit, employees claim the employer failed to pay them for mandatory screenings, which the employees say they were required to complete off the clock. A similar class action lawsuit was also filed recently in another California federal court against a national retail chain. In that case, non-exempt employees claim they are not paid for pre-shift time associated with temperature checks and COVID-19 related questions.
Generally speaking, the legal standard is whether the employees’ pre-shift activities are necessary to the work performed and done for the benefit of the employer. It is likely that similar lawsuits will be filed in the future. Employers should have policies and procedures in place to allow employees to clock in for any required pre-shift activities which take enough time to be considered more than “de minimis” under legal standards. Employers should also have a process in place to allow an employee (or a manager) to manually add time to their shift when necessary.