Attorney Jean-Claude Lapuyade

Must an employer pay for pre-shift Covid-19 screening?

The advent of the ongoing health crisis has caused employers to take many steps to prevent the spread of the disease at work. One of the most significant steps adopted by employers is the requirement that all employees complete pre-shift screening questionnaires and undergo temperature checks. The imposition of these requirements has raised a new question: is the time spent completing the questionnaires or submitting to temperature checks compensable under the Wage Order 7 issued by the California Industrial Welfare Commission?

Recent judicial opinion

In Friekin v. Apple, Inc.,the California Supreme Court considered a similar issue in deciding whether Apple was required to compensate its employees for time spent waiting for company employees to search their bags, boxes, purses and other personal possessions as they left the work premises at the end of the day. After an extensive review and analysis of various regulations and statutes, the court concluded that the employees were entitled to compensation because they were still under their employers’ control as they awaited the completion of the post-shift searches.

What about pre-shift waiting for questionnaires and other examinations?

While the same result seems intuitively obvious, a close evaluation may produce a different result. In deciding Friekin, the court relied heavily on its finding that the post-shift inspection was intended to benefit the employer – and only the employer – by preventing theft. In the case at hand, the employer does not reap the same unilateral benefit. While the employer certainly gains a benefit by ensuring that the work force is free of the covid-19 virus, the employees gain a reciprocal benefit. In fact, the record of the case does not contain any evidence about whether the employees are suffering a reduced level of infection.

Once again the record is not sufficient. Are employees waiting for the pre-shift checks to be completed still under the employer’s control? Are they free to run personal errands? What are the consequences of being late?

Without more evidence, a court is unlikely to rule in favor of the employees on the issue of compensation. A conference with an experienced employment law attorney may be useful for anyone engaged in a dispute over this issue.