State and federal guidelines mandate the use of additional personal protective equipment (PPE) to guard against the spread of the Coronavirus in places of employment as they reopen in stages across the country. This raises the question: Will employers need to pay employees for the time it takes to don their protective gear before a shift, and to doff it after the shift ends?
The short answer is: It depends.
The Fair Labor Standards Act (FLSA) and state wage and hour laws require employers to record and pay their nonexempt employees for all “compensable time” regarding certain activities that occur before an employee begins his or her principal activities during the work day. It is figuring out how compensable time is defined where things get sticky.
Donning and doffing protective clothing and gear are not the only activities covered by the laws. Traditionally, these “off-the-clock” tasks have included security checks upon entering or leaving the workplace, and checking documents generated during the shift, as well as inventory or business-related e-mails, notes attorney Thomas J. Barton of the law firm of Faegre Drinker Biddle & Reath.
In the new workplace, employees also may need to:
• Undergo temperature checks.
• Engage in frequent hand washing.
• Wear a mask and gloves.
• Walk from designated health and safety areas to work assignments.
• Disinfect work areas.
• Ensure proper physical distancing.
In a recent case, the U.S. Supreme Court found that warehouse employee security screenings (sometimes called “bag checks”) are not compensable, even if for the employer’s benefit, because such screenings were not an “intrinsic element” of retrieving product from shelves and shipping that product.
Under federal labor law, pre- and post-shift activities must be paid if the activity is “integral” and “indispensable” to the employee’s principal activity, is not “de minimis” (usually 10 minutes or less, but can be aggregated with other pre-shift tasks); and does not fall within the FLSA exception for changing clothing, washing or walking to and from a work station.
When it comes to PPE, such as masks and gloves, a federal appeals court distinguished between unique items that are compensable—protective gear such as Kevlar gloves—and generic or non-unique items that are not compensable—such as hardhats, goggles and hairnets.
“Although not definitively resolved, an employee’s use of rubber surgical gloves and an N95 face mask appear to fall into the generic category and may also be de minimis, requiring less than a minute to put on or take off,” Barton observes. “However, if employees are mandated by law to wear masks and gloves or the argument can be made that the workplace health risk is so significant, there may be a case that it is indispensable to performing the job.”
Watch Out for State Law
Keep in mind that several states have their own wage and hour laws governing what is considered compensable time which don’t always follow the FLSA. California wage and hour law does not follow the “intrinsic element” finding of the Supreme Court and instead considers any activity when the employee is under the employer’s control to be compensable time. California law also does not recognize the de minimis doctrine.
Those employers who have experienced a putative class action lawsuit know how these few minutes can add up when aggregated over the course of a work year and across the entire workforce, particularly when combined with attorneys’ fees, interest, costs and statutory penalties, Barton points out.
He adds that once an activity is deemed compensable, normally all activities that follow are compensable as well. This includes an employee who changes clothes claiming compensation for all activities afterward like a temperature check, walking to a work station, undergoing an otherwise non-compensable security screening, or waiting to clock in or begin work.
Because routines will inevitably change, Barton says employers should:
1. Review timekeeping and pay policies in light of any new pre-shift, post-shift or meal/break period activities. This may present an opportunity to consider and revise workplace policies to account for and align existing pre- and post-shift activities. These policies should be communicated directly to the employees, including the sequence of activities, whether they are required and whether they are compensable.
2. Sequentially map the pre-shift and break activities to determine the order, the time each should take and whether each is compensable. For example, the sequence may be that the employee has to wait for his or her temperature to be checked outside, put on a mask and gloves, wait for a bag security check, disinfect the computer or work area, check e-mail and then clock in.
3. Consider when in the process an employee will clock in and clock out and the location of the time clock, card swipe, or computer. The physical layout of where these activities are performed in relation to the time entry system can reduce the amount of time spent on compensable pre-shift/post-shift/break activities.
4. Determine how to supply masks, gloves and sanitizer/disinfectant and whether those items are reimbursable business expenses if purchased by the employee.
5. Review your state’s wage and hour laws to determine whether new routines would be compensable time in that state.
When it comes to employees who continue to telecommute, Barton says for those nonexempt employees who perform some work from home, their employers should consider procedures for accurately capturing the employee’s time; and whether the requirement to check e-mails, reports and updates at the beginning or end of the work day will extend the compensable work day.