DOL Issues New Guidance Related to the COVID-19 Pandemic Likely to Impact Firefighters, EMTs, and Other Essential Public Safety Personnel – Part I – Employer Mandated Temperature Checks

This is the first of several posts dedicated to new guidance issued by the U.S. Department of Labor (DOL) on wage and hour issues related to the COVID-19 pandemic and the compensability of certain health related job requirements and activities. The DOL’s Wage and Hour Division issued this guidance on April 26, 2021 as part of a new initiative entitled Essential Workers, Essential Protections. Essential Workers, Essential Protections is aimed at ensuring that essential workers are aware of how the FLSA and DOL regulations will protect their rights under federal wage and hour laws, while ensuring workers have a clear path to contact the DOL for assistance.

As part of the Essential Workers, Essential Protections initiative, the DOL’s Wage and Hour Division has posted several commonly asked questions and answers related wage and hour issues encountered as a result of the Pandemic on its website. One such question is: “My employer requires all employees to take their temperature to try and screen for people who might have COVID-19 before entering the job site. Do I need to be paid for the time spent taking my temperature?”  In response, the DOL wrote that employer mandated health screenings, including temperature checks, before an employee’s work shift is compensable work time under the FLSA if the screening is necessary for the employee’s job.

The DOL utilized the following example to illustrate this requirement: 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. In other words, the temperature check is integral and indispensable to the nurse’s job.

The DOL’s take on this question should not come as a surprise for professionals familiar with the FLSA, DOL regulations, past opinions, and case law. However, this precise issue has yet to be addressed by any court and the compensability of certain pre-and-post shift activities, like temperature checks, still remain a relatively unsettled area of law. But, with this new guidance in place, it certainly appears as if the DOL is placing its finger on the scales in the likely event we see litigation on this topic in the near future.

The key take-aways for public safety employers in this area should include the following:

  • Develop an solid understanding of both federal and state laws regarding the compensability of pre-and-post shift activities.
  • Implement policies and procedures that provide an avenue for workers to report the time spent before and after scheduled work shifts engaging in compensable work-related activities.
  • Ensure that your organization is keeping accurate records as required by both the FLSA and state wage and hour laws of all hours worked by all employees.
  • Finally, under most circumstances, the time dedicated to pre-shift temperature checks and similar COVID-19 pre-shift protocols only take a few seconds to minutes to complete. This does not represent an enormous liability for employers, however best practice requires employers monitor the time employees spend engaging in such activities to ensure employees are not unnecessarily delayed. Any delay encountered by employees engaging in pre-shift COVID screenings will likely present a fertile ground for future FLSA litigation.

For more, check out Essential Workers, Essential Protections from the DOL’s website and stay tuned for the next installment on this topic from FirefighterOvertime.

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