It did not take long for the Department of Labor to announce its first-ever settlement of a claimed violation of the Families First Coronavirus Response Act.
The DOL’s press release provides the details:
Bear Creek Electrical – an electrical company based in Tucson, Arizona – will pay one employee $1,600 for refusing to provide him sick leave under the newly passed Emergency Paid Sick Leave Act after health care providers ordered him to self-quarantine with potential coronavirus symptoms.
WHD investigators found that Bear Creek Electrical failed to pay the employee for what qualified as paid sick leave covering the hours he spent at home after the company received documentation of his doctor’s instructions to self-quarantine. The employer will pay the employee’s full wages of $20 an hour for 80 hours of leave.… Bear Creek Electrical also agreed to future compliance with the FFCRA, which went into effect on April 1, 2020.
“This case should serve as a signal to others that the U.S. Department of Labor is working to protect employee rights during the coronavirus pandemic,” said Wage and Hour District Director Eric Murray in Phoenix, Arizona.
You’ve been warned. If you are not providing your employees the paid coronavirus leave to which they are entitled, the DOL is watching.
This week, Amazon workers are protesting what they view as unsafe working conditions. 300 workers from 50 facilities will skip their scheduled shift to protest Amazon’s treatment of warehouse workers.
According to United for Respect, the worker rights group organizing the protest, says that the Amazon employees are hoping to accomplish the following.
When an employee tests positive for coronavirus, the immediate notification of all employees at the facility, and the closure of the facility for two weeks with full pay.
Regular and deep cleaning of all facilities, including after a positive test.
The provision of proper safety equipment to all employees, with training on effective use.
14 days of paid sick leave for anyone with symptoms and 12 weeks of emergency paid family leave for employees to care for loved ones who get sick.
Healthcare for all Amazon employees.
Hazard pay, including time-and-a-half during the crisis and childcare pay and subsidies.
Amazon employees are not unionized, and this isn’t a strike. It’s a short-term walkout of non-unionized employees. Just because these employees aren’t unionized, however, doesn’t mean that their walkout isn’t protected. In fact, it’s very protected. The National Labor Relations Act covers employees who engage in protected concerted activity—meaning that employees have the right to talk between and among themselves about terms and conditions of employment, including walking off the job in protest.
An employer’s first instinct might be to fire the instigators (as Amazon is accused of doing). That would be a big mistake. The NLRA protects employees from retaliation after engaging in protected concerted activity. It’s also just a really bad look, especially now.
Instead, I’d view these protests as a wake-up call.
For starters, we know that one or more labor unions are in employees’ ears helping them organize their walk-outs. A mass walk-out could easily lead to a mass walk-in to the nearest NLRB field office to file an election petition. Don’t offer the union more ammo by firing the organizers.
Secondly, this type of protest offers employers an amazing opportunity to heal some wounds. Amazon likely won’t offer these employees each item on their laundry list of demands, but it should consider all of them and offer those that can be accommodated.
These employees just want to feel safe and know that their employer takes their concerns seriously. At the end of the day this is not that big of an ask, and treating it as such only makes the situation worse.
Last week I took a stab at making sense of the messy and unclear rules surrounding the substitution of employer-provided leave (which, for the sake of simplicity, I’ll refer to as (“PTO”) for paid sick leave (“EPSL”) and expanded Family and Medical Leave (“EFMLA”) under the Families First Coronavirus Response Act.
On April 21, the Department of Labor published its 5th set of FAQs discussing the FFCRA. Question 86 squarely addresses and clarifies the intersection between employer-provided paid leave and leave under the FFCRA.
1. An employer may not require that PTO run concurrently with—that is, cover the same hours as—EPSL. 2a. An employer may require that PTO run concurrently with the paid weeks of EFMLA. PTO that runs concurrently with EFMLA will enable the employee to receive 100 percent of his or her daily pay plus the EMFLA benefit (two-thirds of her or her regular rate of pay, capped at $200 per day and $10,000 in total). Note, however, that the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act, not for any concurrent PTO applied. Once an employee exhausts all available PTO, EFMLA is continued to be paid out of the statutory two-thirds rate. 2b. Alternatively, an employer and employee may agree to top off the two-thirds EFMLA pay to an amount equal to 100 percent of the employee’s regular pay. Again, the FFCRA’s payroll tax credit only reimburses the employer for the paid leave provided under the Act. 3. An employee may elect—but an employer may not require the employee—to take EPSL or PTO (but not both) during the first two weeks of unpaid EFMLA.
We all want to get back to work as safely and as quickly as possible.
One thing that would allow us to do this with confidence is widespread antibody testing, a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity and a reasonable degree of safety for an employee to return to work.
This testing, however, raises two critical questions.
1. Can employers legally require it?
2. Should employers rely on it as an indicia of safety?
Can an employer legally require antibody testing?
The “can” question is easy to answer. According to the EEOC, because coronavirus is a “direct threat,” employers have carte blanche to test employees, including antibody testing as a return-to-work condition.
The Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a direct threat due to a medical condition.
A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an individual with a disability poses a direct threat despite reasonable accommodation, the nondiscrimination provisions of the ADA do not protect him or her, and disability-related inquiries and medical examinations are legal and permissible.
Per the EEOC, “As of March 2020, the COVID-19 pandemic meets the direct threat standard,” because “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
Thus, because COVID-19 is a direct threat, employers absolutely can require antibody testing as a condition for an employee to return to work.
Should an employer rely on antibody testing as an indicia of safety?
The more difficult question is whether an employer “should” require it and rely on it.
More than 90 companies have jumped into the market since the F.D.A. eased its rules and allowed antibody tests to be sold without formal federal review or approval.
Some of those companies are start-ups; others have established records. In a federal guidance document on March 16, the F.D.A. required them to validate their results on their own and notify the agency that they had done so.…
Most of the tests offered are rapid tests that can be assessed in a doctor’s office — or, eventually, even at home — and provide simple yes-or-no results. Makers of the tests have aggressively marketed them to businesses and doctors, and thousands of Americans have already taken them, costing a patient roughly $60 to $115.
Rapid tests are by far the easiest to administer. But they are also the most unreliable — so much so that the World Health Organization recommends against their use.
These tests have a false-positive rate of 5 percent (or higher), a significant margin of error when you consider that in a community with a five percent infection rate you’d have as many false positive as actual positives.
Even labs that are marketing these antibody tests to employers are cautioning against their reliability.
This test hasn’t been reviewed by the FDA. Negative results don’t rule out SARS-CoV-2 infection, particularly in those who have been in contact with the virus. Follow-up testing with a molecular diagnostic lab should be considered to rule out infection in these individuals. Results from antibody testing shouldn’t be used as the sole basis to diagnose or exclude SARS-CoV-2 infection. Positive results may be due to past or present infection with non-SARS-CoV-2 coronavirus strains, such as coronavirus HKU1, NL63, OC43, or 229E.
In other words, these tests aren’t reliable because the FDA hasn’t reviewed them, and because of risk of a strand of coronavirus other than COVID-19 flagging a false-positive result.
What does all of this mean?
First, employers should not and cannot rely on currently available antibody tests as the magic bullet to get employees safely back to work. They are simply not sufficiently reliable.
Secondly, for the time being, employers will have to rely on measures other than testing to keep employees safe.
Third and finally, the government needs to ramp up the approval of reliable testing. Without readily available quick and reliable tests we are shooting in the dark by bringing employees back to work, and we will continue to spread infections no matter how many other steps businesses take to attempt safely to return employees to work.
The CDC recommends that employees who can work from home do so, and state stay-at-home orders are requiring telework whenever possible.
The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when this crisis ends will businesses return to their pre-coronavirus telework hostility?
I hope it’s the former but I fear it’s the latter. And if it’s the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit Court decided in the midst of the growing coronavirus outbreak and just five days before the World Health Organization declared a viral pandemic, gives us some insight into the future issues.
Kassi Tchankpa, a database administrator for Ascena, seriously injured his shoulder while transporting laptops to work. The injury limited his ability to bathe himself, cook, wash dishes, open the refrigerator or drive normally. Yet, with a variety of accommodations from Ascena (such as arriving late or leaving early as needed to attend medical appointments and flexible scheduling), Tchankpa was able to work in the office for the first 10 months after his injury.
When he asked to work at his home three days per week as further accommodation (something he argued Ascena allowed other employees to do), the company balked. Tchankpa’s supervisor made clear that Tchankpa needed medical documentation to support his request for regular work from home.
Tchankpa’s doctor, however, never provided that documentation, and instead advised the company that Tchankpa could continue to work from the office as long as he took frequent breaks for his shoulder. Ascena thus denied the work-from-home accommodation request. As a result, Tchankpa quit and sued for disability discrimination.
The lack of documentation supporting Tchankpa’s telework accommodation request doomed his claim:
Employers are entitled to medical documentation confirming the employee’s disability and need for accommodation. And Ascena invoked that right in early 2013. Yet Ascena did not receive documents discussing Tchankpa’s medical restrictions until October 2013. Far from showing a necessary accommodation, Dr. Stacy’s report stated that Tchankpa could work eight hours per day, five days per week. Without medical documentation showing that Tchankpa’s disability required work from home, Ascena had no duty to grant Tchankpa’s request. After all, we presume on-site attendance is an essential job requirement.
Thus, an employee seeking telework as a reasonable accommodation must provide a requesting employer documentation as to the medical necessity of that accommodation. This is true of any reasonable accommodation. Unless the need for a reasonable accommodation is painfully obvious, an employer never has to take an employee’s word for it, and should always request medical documentation to support that need.
Which has nothing whatsoever to do with telework during this pandemic emergency. Everyone who can be teleworking should be teleworking, period, no questions asked.
The bigger question is what happens after we all return to our physical places of work. Currently, about half of employed adults are working from home. According to the Bureau of Labor Statistics, before coronavirus only 19.5 percent of the workforce performed some paid work at home. We should expect the numbers to meet somewhere in the middle after we are all allowed to safely return to work. Indeed, the Brookings Institute predicts that telecommuting will continue long after the pandemic ends.
While working from home hasn’t been perfect over the past month, it’s still been work. With email, remote access, cloud storage and Zoom, I’ve been able (more or less) to accomplish everything I’ve needed to. Still, I miss my co-workers and can’t envision doing this from-home thing on a permanent, full-time basis. But I can envision it a day or two a week.
So here are my questions on the heels of the Tchankpa court’s declaration that “on-site attendance is an essential job requirement.” Is it still? If employees are currently working productively from home, will an employer still be able to make a future claim that on-site attendance is essential to those employees’ jobs? Or will remote work finally take its rightful place alongside in-person work as accepted and acceptable?
While telecommuting has been the exception by a vast number, my hope is that the wall that has separated exception from rule will evaporate, as this pandemic has shown that we can productively work without being at work.
We’ve been anticipating a seismic shift in the world of work for years. With factors like digital disruption, climate change and divergent geo-politics, it is no surprise that the “future of work” has finally arrived.
But did we expect it to arrive on these terms? A pandemic is eviscerating our communities, emerging with little warning and threatening lives and the global economy. The sorrow is pervasive.
At first, we at PwC were workforce strategists living under a cloak of sadness. But we found relief through creativity.
I’ve been socially isolated in New York for almost a month. I’m finding that by dedicating some right brain thinking to my daily schedule, I’m working in new ways. Not only does my “creativity break” help me relax each day (particularly when it involves paint, glitter and crayons), it helps me re-energize and solve work problems from a new perspective.
Daily, my daughter and I take a break and do an art project together. I have found that the quality of our art is getting better each day, and with that grows our confidence. This is showing in how I engage with my work when I’m inspired to try new things — like testing out a new automation tool in PwC’s Digital Lab or communicating with a client using a new technology.
I tested the impact of creative release with my team, which is why we made QUARANTINE DAYS, a collaborative art project involving a collection of drawings and doodles. In my career, I have worked with clients to solve the most complex workforce issues — but QUARANTINE DAYS is one of my most prized projects. It gives me joy to admire what we have built as a team, through times of fear, anxiety and sadness.
Step 1: Know your audience. To make a project like this work, choose an audience that is willing to demonstrate vulnerability. For many, doodling is not a natural pastime. It helps if there is an established level of familiarity across the group.
Step 2: Establish collaboration tools. We created a virtual chat room called “doodle madness” that allowed us to share drawings in a no judgement zone and did not distract from formal business communications.
Step 3: Define roles. You need a leader who can sponsor the project and is willing to embarrass themselves sometimes and demonstrate vulnerability. The sponsor will share the first doodle of the day to encourage others (and in our case, set a very low precedent for artistic talent). You need a project manager to encourage participation and collate the artwork.
Step 4: Give encouragement. A deliberate effort to recognize individual contributions is important to long-term participation. We have promoted QUARANTINE DAYS on social and external channels to give our collaborating artists recognition for their part in this creative process. This has also served as a subtle motivator.
When our project ended, we sought results on how the creative process made participants feel. Most loved the distraction and the intellectual liberties they experienced by letting the right brain take over. Some loved how their drawings made people laugh — providing comic relief in taxing times. Others thought it helped us connect as a team and get to know one another on a deeper level.
Hearing this, I am not surprised that Harvard Medical School found that casual doodling not only improves attention span but also relieves psychological stress. I think in the future, I might ask my teams to draw and present their ideas when we problem solve for clients — instead of scribbling down messy thoughts on a faded whiteboard.
I love this creative depiction of the process from my colleague, Anna Leiman.
Employee feedback about the challenge
Staying human, especially during a crisis, matters. It may seem obvious, but creativity is an outlet, and in times like COVID-19, we need it.
Not everyone likes to draw. Some like to cook, play instruments or dance in the living room. It doesn’t matter what outlet people prefer. The point is that we are human, and even if we can’t be together physically, by sharing in creativity and using these periods of social isolation for gratitude and reflection, we’ll get through COVID-19. And by engaging employees this way, we’ll come out of it stronger and more connected than ever before.
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Many thanks to the contributing artists from PwC’s Financial Services People & Organization team for their contributions to QUARANTINE DAYS: Bhushan Sethi, Julia Lamm, Jenna Jackson, Alex Spira-Gutner, Christy Wade, Mona Jolly, Taylor Goodman, Alexandra Hom, Lauren Hammond, Andrew Pallotta, Caroline Brainerd, Meg Connelly, Stefanie Goldberg, Stephanie Madarasz, Stephanie Sullan, Smital Patel, Nick Hladek, Jay Sharma, Anna Leiman, Rebecca Leopold, Nicolette Sortisio, Olivia Hewitt, Madeline Bryke, Zachary Horowitz, Dina Finkel, Charmaine Chan, Carolyn Tomlinson, Nicole Pollack, Armando De la Flor, Jamie Burke, Neil Patel, Alexandra Reyes and Victoria Sulenski.
Thank you also to members of the critical services workforce, including medical staff such as doctors, nurses and hospital administrators who work tirelessly to prevent the spread and destruction of COVID-19.
One of the more confounding sets of rules under the Families First Coronavirus Response Act is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave — the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”) — mandated by the Families First Coronavirus Response Act.
I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO.
The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.
So let’s try to sort it all out.
1. An employer can never require an employee to substitute PTO for EPSL. The employee can elect that substitution, but it can never be forced by the employer.
2. If an employee is taking leave to care for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, the employee qualifies for both EPSL and EFMLA. It is the employee’s sole choice whether to use EPSL during the initial two unpaid weeks of EFMLA (for which both types of leave will run concurrently), or save the EPSL for later use for another qualifying reason (or, I suppose, tack it on after the expiration of the FMLA leave). An employer cannot force an employee to use EPSL during those initial two unpaid weeks of EFMLA.
3. Here’s where it gets tricky. When can an employer require an employee to use PTO during EFMLA? Section 826.23(c) of the regulations is the key provision.
Section 2612(d)(2)(A) of the FMLA shall be applied, provided however, that the Eligible Employee may elect, and the Employer may require the Eligible Employee, to use only leave that would be available to the Eligible Employee for the purpose set forth in § 826.20(b) under the Employer’s existing policies, such as personal leave or paid time off. Any leave that an Eligible Employee elects to use or that an Employer requires the Eligible Employee to use would run concurrently with Expanded Family and Medical Leave taken under this section.
(Section 2612(d)(2)(A) of the FMLA permits an employer to require the substitution of PTO for FMLA leave.)
What does this all mean? It means that an employer can require an employee to use available PTO during the unpaid portion of an EFMLA school closure of loss-of-child care coronavirus-related leave. If an employer so requires, the PTO runs concurrently with the EFMLA allotment.
4. An employer and employee can agree to “top-off” EPSL or EFMLA (that is, true up the employee’s pay through the substitution of PTO so that the employee earns his or her full pay). But the employer cannot require it.
All clear, correct? Or clear as mud?
Disagree with my interpretation? Drop a comment below and let’s try to figure it out together.
We used to fill our time running our kids all over the place for various lessons, rehearsals, and gigs. Now, however, we have a lot of down-time, with nothing to do. So how am I filling my time when I’m not working? (Which, btw, I’ve been doing a lot of over the past month.)
1. Walking … a lot. We are walking a ton of miles. As in 4 to 6 miles per day. The rings on my Apple Watch are very happy. Partly because we have two high-energy dogs (one being an 11-month-old puppy) that can’t go to daycare to tire themselves out. And partly because what else are we going to do? Let me make a few observations from my miles of walking. First, thank you to most for maintaining social distance. People (more or less) have been really good about keeping six feet of separation. Secondly, people have been really nice to each other. Lots of, “How are yous” from total strangers (from a socially acceptable distance). Third, it appears that many people do not think kids can carry or catch COVID-19. Because I’ve seen lots of kids playing together in close groups (basketball, football, walking, etc.). Parents, I know this sucks for your kids. It’s going to suck more if they transmit this virus to each other. Please, let’s try to maintain social distance for a few more weeks, and we can all start to get back to normal socializing again (although it’s going to take me a while to feel comfortable shaking someone’s hand or getting in an elevator).
2. Cooking and baking. Because we always seem to be running around a lot, we are always grabbing food out. We must eat out four times a week. Without nowhere to go, I’ve been cooking every night. I’ve also been baking (a combination of comfort and nesting, I think). The cooking is starting to get old. I really do love to cook, but I also love the option of not cooking. When this is all over, I think I’ll be exercising that option a bunch. Also, if anyone wants the world’s greatest gluten-free chocolate chip cookie recipe, hit me up.
3. Grazing all day. One of the downsides of working from home (aside from the a-hole puppy who barks, and goes crazy, and generally likes to annoy us and his big sister) is the easy availability of food and constant snacking. Thankfully, no. 1 above makes up for these added comfort calories.
4. Virtual cocktail hours. Since we can’t connect with people in person, we’ve been connecting remotely via Zoom. We have weekly check-ins with family (real and our Fake ID band family). We’ve also connected with friends as far as the West Coast and as near as across the street. It’s been a great (albeit different) way to keep in touch and re-connect. And, cocktail hour.
5. Slowing way down. One of the unintended benefits of sheltering at home is that we have been forced to sloooooow down. No longer running to and from place to place, we have the time to sit and play a family game or watch a family movie (***** for “Almost Famous,” even though I forgot that Kate Hudson shows her boob; ***1/2 for “Onward,” not one of Pixar’s best, but still enjoyable and sweet.) It’s not like we weren’t connected as a family pre-coronavirus, but this has forced us to reconnect in a good way. And no one is sick of anyone else … yet.
If remote employees aren’t living up to productivity expectations right now, employers shouldn’t immediately jump to “slacking off” as the reason.
Not only is this skewed worldview insulting to employees, but this degree of virtual micromanagement is insensitive to remote workers during the coronavirus pandemic.
In fact, studies show that employees are usually more productive at home than in the office. One survey of 1,004 full-time employees across the United States found that on average, remote employees worked 1.4 more days every month, or 16.8 more days every year, than those who worked in an office setting. Nicholas Bloom, an economics professor at Stanford University, found similar results in his two-year study about working from home. Remote working made employees more productive and less likely to quit, according to his study.
Yet there are some paranoid managers who envision their remote workers lying on the couch, shirking work and watching trashy daytime TV. This isn’t the reality for most workers in normal times, let alone during a pandemic.
Remote workers aren’t on vacation right now. They’re dealing with the very real consequences of a deadly global outbreak. Most people are quarantining at home (if their job allows), avoiding people as much as they can, staying as safe as possible at the grocery store and home-schooling their children on top of their work and home responsibilities.
Meanwhile, as more companies turn to layoffs and furloughs, even employed people have financial worries. What happens if they lose their job and employer-provided health insurance? What about workers who live paycheck to paycheck and worry about affording rent and food if they get laid off? The vast majority of employees won’t use working from home as an excuse to do less. Instead they’ll do what they can to stay relevant to their employer and not lose their job and their health care.
The COVID-19 pandemic has brought further responsibilities to many employee populations, like caregivers of children or sick family members. These people don’t have more freedom and free time due to their work-from-home status. According to a survey of 4,293 working parents that was conducted from March 28 through March 30, only 46.23 percent of men and 25.14 percent of women responded that they are able to juggle work and watching children. Even considering this “unequal divide of household labor” and how mothers are impacted most, most fathers are struggling, as well.
Meanwhile, even if someone doesn’t take care of a child or sick family member, they still need to care for themselves. Maintaining one’s mental health is important during a pandemic, whether you simply feel more stressed than usual or have a mental illness that requires treatment and attention.
According to the Centers for Disease Control and Prevention, people who may respond more strongly to the stress of the COVID-19 crisis include those who are especially vulnerable to the virus (older people and those with chronic diseases), children and teens, people with mental health or substance abuse issues and caregivers and health care providers who are helping others deal with health issues.
“[It] seems the world has gone bonkers about sick leave and time off from work. I’m hoping despite what we are facing that many people STILL have paid vacation leave due to them. This work at home thing — and this even more ever-present ‘digital presenteeism at work’ — may make us forget that we can take time off even if we or those around us are not ill. Remember? We are supposed to take holidays [and] vacations to refresh,” she wrote.
This is a great comment, and not something I’ve seen a lot from employers. I understand that businesses as well as individuals are suffering right now. I’m not suggesting that companies should shift all focus from operations to comforting employees. But there needs to be a balance.
Rather than expecting employees to be 100 percent productive all the time and expecting them to not take any time off unless it’s for the “right reasons,” employers also need to show sympathy to their workforces right now. People aren’t robots. They respond to the world around them. What we’re going through now with COVID-19 is anxiety-provoking at best and life-destroying at worst.
Several months ago I interviewed Morgan Young, vice president of client services, employee benefits at Holmes Murphy, and what she said about productivity expectations is especially relevant now.
“You can acknowledge that fact that people are going to have struggles in their life and nobody is going to be at peak performance 100 percent of the time, and that’s OK. Employers can have a healthy conversation about that and know that, ‘If I can get [employees] through the valleys they have and back to their peak, we’re doing great,’ ” she said.
Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.”
To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.
Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.
The ADA typically prohibits employers from taking employees’ temperatures as an unlawful medical examination. Because the WHO has classified coronavirus as a pandemic, however, just about all medical exam issues under the ADA are temporarily moot. According to the EEOC, among other coronavirus prevention measures, employers may measure employees’ temperatures. This issue, at least for now, is pretty cut and dry.
The FLSA issue is a little more nuanced. In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing “preliminary” (pre-shift) and “postliminary” (post-shift) activities that are “integral and indispensable” to an employee’s principal activities. What activities are “integral and indispensable?” Those that are (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”
In Busk, for example, the Court held that post-shift security screenings were not “integral and indispensable” for an Amazon warehouse employee, because such screenings are not “an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment,” and the employer “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.”
According to the Bloomberg Law article, employers could look to Busk to argue that pre-shift temperature checks, even if mandatory, are not “integral and indispensable” and therefore can be unpaid. (For what it’s worth, I think a just as good, or better, argument is that preliminary temperature checks to protect employees from a deadly virus are integral, indispensable, and compensable.)
Busk or no Busk, this isn’t a “what does the law allow” issue; this is a “what’s right is right” issue. If you’re requiring your employees to queue in a line to take their temperature before you’ll let them enter the workplace, pay them. Don’t be cheap and don’t count pennies.
Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment.
What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn’t go belly up if you pay each employee for a few extra minutes of time each day, especially when the federal government is going to reimburse you through your Paycheck Protection Program loan. (You did apply for your loan, right?)
At the end of this pandemic, many businesses will no longer exist. If there’s such a thing as karma, one of the deciding factors in which ones survive will be how they treated their employees.
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Don’t forget that I’ll live on Zoom tomorrow, April 9, from 11:30 am – 12:30, open paid sick leave and eFMLA issues, and taking your coronavirus questions. And Norah has said she will drop in and share another song. You can access the Zoominar here: https://zoom.us/j/983559955
Yet there are some
