For the past year, employers have been regularly screening employees for fevers and other Covid-19 symptoms. If you’ve attended one of my Covid webinars (the next one is on March 23), you’ve heard me bring up the question of employee pay.
I’ve said that while I wasn’t sure of the legality of not paying (and looked at an Amazon court case where the Supreme Court said they didn’t have to pay for security screening), but I was sure of the morality. Nothing tells your employees that you don’t care about them like forcing them to stand in a line while you don’t pay them. I also warned people that not paying was likely to land you as the test case in court.
Well, those test cases have now been started. This tweet, from employment attorney and friend of the blog, Jon Hyman, came through my feed.
New post: Coronavirus Update 3-18-2021: Employers facing lawsuits for failing to pay for pre-shift Covid screenings https://t.co/mE1DtOo8Sy— Jon Hyman 😷 (@jonhyman) March 18, 2021
Who is getting sued? I’ll give you three guesses
If you guessed Walmart, you’d be right. They, of course, have the money to fight a lawsuit all the way to the Supreme Court. They also have the money to pay their employees for standing in line. I’d certainly prefer that they spend the money on their front line staff rather than paying high priced lawyers.
Jon thinks the employees will win this. He writes:
Legally, the standard, per SCOTUS’s decision in Integrity Staffing Solutions v. Busk, asks whether the pre-shift activities are “integral and indispensable” to an employee’s principal activities (“necessary to the principal work performed” and “done for the benefit of the employer”). It’s hard to fathom a situation during a pandemic in which pre-shift health screenings don’t meet this standard.
I hope he’s right. But even if he’s wrong and Walmart and the others pull out a win on this one, it’s a horrible thing to do. If you’re going to screen employees, make sure you pay them for their time. It’s the only moral thing to do.