Tag Archives: essential workers

Must Employers Pay for Employee’s Temperature Screens in Light of COVID-19? Wage and Hour Laws May Impact Employer Safety Procedures

Contributed by Sara Zorich, May 5, 2020

Hand putting card in time clock

While some states are beginning to loosen their stay at home orders, others continue to only be open for essential business. On April 10th we reported on the relaxation of the CDC guidance for safety practices for essential workers. This included advice from the CDC that critical infrastructure workers may be permitted to continue to work, or return to work, following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented by the employer including pre-screening employee’s temperatures prior to starting work.

We have seen a major uptick in employers performing temperature testing on employees prior to employees starting work which most likely is prior to an employee clocking in. Thus, many employers are asking if this time is compensable under federal and state wage and hour laws. The answer – under federal law most likely not but under state wage and hour laws it depends.

Federal Law

In Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513, 517, 190 L.Ed.2d 410 (2014), the US Supreme Court held that the 25 minutes plaintiff warehouse employees spent waiting for and undergoing security screenings at the end of their shifts was not compensable under the Fair Labor Standards Act (FLSA). The Supreme Court held that it was not compensable because the employer “did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Based on Integrity, employee temperature tests are most likely not compensable under the FLSA.

State Law

Many states, however, have their own wage and hour laws which can be more stringent and have different definitions for “hours worked” than that of the FLSA.  Further, states laws like Illinois, can have significant damages for violation of wage and hour laws including interest payments, treble damages and payment of attorney’s fees.  Whether a company needs to compensate employees for temperature checks or increased safety protocols occurring prior to or after the work day will need to be analyzed on a case-by-case basis.  However, in general, Missouri and Indiana probably would not require compensation of the time as their state laws look to federal interpretation but most likely the time would be compensable under Illinois and Wisconsin wage and hour laws.

Employers who are requiring temperature checks (and other safety protocols) must review their practices for the testing, requirements of employees, time taken to perform testing and if the employees are required to wait in line for the test to be performed. These factors (along with state laws) will impact the compensability of the time. 

Governor Pritzker Extends the Illinois Stay at Home Order through May 30, 2020

Contributed by John Hayes, April 23, 2020

On Thursday April 23, 2020 Governor Pritzker announced that he was extending and modifying the existing Stay at Home Order for Illinois, which was set to expire April 30, 2020. The new executive order will run through the end of May and will include the following modifications effective May 1, 2020:

• OUTDOOR RECREATION: State parks will begin a phased re-opening under guidance from the Department of Natural Resources. Fishing and boating in groups of no more than two people will be permitted. A list of parks that will be open on May 1 and additional guidelines can be found on the Illinois Department of Natural Resources website. Golf will be permitted under strict safety guidelines provided by the Illinois Department of Commerce and Economic Opportunity (DCEO) and when ensuring that social distancing is followed.

• NEW ESSENTIAL BUSINESSES: Greenhouses, garden centers and nurseries may re-open as essential businesses. These stores must follow social distancing requirements and must require that employees and customers wear a face covering. Animal grooming services may also re-open.

• NON-ESSENTIAL RETAIL: Retail stores designated as non-essential businesses and operations may re-open to fulfill telephone and online orders through pick-up outside the store and delivery only.

• FACE COVERINGS: Beginning on May 1, individuals will be required to wear a face-covering or a mask when in a public place where they can’t maintain a six-foot social distance. Face-coverings will be required in public indoor spaces, such as stores. This new requirement applies to all individuals over the age of two who are able to medically tolerate a face-covering or a mask.

• ESSENTIAL BUSINESSES AND MANUFACTURING: Essential businesses and manufacturers will be required to provide face-coverings to all employees who are not able to maintain six-feet of social distancing, as well as follow new requirements that maximize social distancing and prioritize the well-being of employees and customers. This will include occupancy limits for essential businesses and precautions such as staggering shifts and operating only essential lines for manufacturers.

• SCHOOLS: Educational institutions may allow and establish procedures for pick-up of necessary supplies or student belongings. Dormitory move-outs must follow public health guidelines, including social distancing.

• ELECTIVE SURGERIES: The Illinois Department of Public Health will also be issuing guidance to surgery centers and hospitals to allow for certain elective surgeries beginning May 1. They will need to meet specific criteria, including providing personal protective equipment, ensuring enough overall space for COVID-19 patients remains available, and testing of elective surgery patients to ensure COVID-19 negative status.

Employers should be mindful of the new requirements for essential businesses and manufacturing as they will require careful monitoring to fully comply with the new order. Additionally, several questions still remain unanswered, such as what is an “essential line” for manufacturers? Stay tuned here for more updates as they become available regarding the extension and modification of the Stay at Home Order for Illinois, as well as modifications to orders in other states.

Having difficulty keeping up-to-date on all of the state executive-level actions taken during the COVID-19 pandemic?  In addition to reviewing the alerts published here in SmithAmundsen’s COVID-19 Task Force Resource Center, check out the Council of State Governments’ website, which has assembled a compilation of all state-level executive orders related to COVID-19. The site is accessible at: http://web.csg.org/covid19/executive-orders, and allows users to search and view executive orders sorted by state or by subject matter. 

Workers’ Compensation and COVID-19: Proving Work Comp Claims are Becoming Easier (with Illinois leading the way…)

Contributed by Carlos Arévalo, Suzanne Newcomb, Brian Wacker and Peter Hansen, April 13, 2020

employment law books and a gavel on desk in the library. concept of legal education.

The question many employers have faced in recent weeks is whether or not COVID-19 could be covered by workers compensation. The answer is generally… “UNLIKELY — except those who are directly involved in dealing with the pandemic — i.e. healthcare workers.” Under workers compensation law 101, an injured or ill employee bears the burden of establishing a causal connection between the conditions under which the work is performed and the injury/illness at issue. This has been the case even for employees contracting infectious diseases such as Hepatitis-B or tuberculosis.  However, there is a current movement to try and greatly expand workers compensation protections during the COVID-19 crisis.   

In fact, today (April 13, 2020), the Illinois Workers’ Compensation Commission issued an Emergency Rule declaring that any COVID-19 injury or incapacitation suffered by certain workers will be “rebuttably presumed to have arisen out of and in the course of employment” and to be “causally connected” to the hazards and exposures of the worker’s employment. 

While first responders and those working in health care are logically impacted given their continual exposure to the virus (and, always were protected by Illinois’ work-comp law), the Emergency Rule notably expands its coverage to all “front line workers” — meaning all workers employed in any “essential business,” as identified in Governor J.B. Pritzker’s March 20, 2020 Stay At Home Executive Order, will enjoy a rebuttal presumption that should they come down with COVID-19 it would be deemed to have been contracted in the course of and connected to their employment. The new standard removes the burden from the employee and requires the employer to present evidence disputing the cause of COVID-19. In light of its broader definition, employee-friendly Illinois has made it easier for a much broader segment of employees to successfully pursue COVID-19 related work comp claims. 

By way of comparison, Indiana employees seeking coverage for COVID-19 still bear the burden of proving they contracted the illness in the course and scope of their employment. This is true even though the Indiana Worker’s Compensation Board has clearly indicated that it intends to view such claims liberally. In an April 2 notice, the Board noted that it is “well accepted” that first responders, healthcare workers and “other employees whose jobs necessarily entail close interaction with many people in a public setting” are more likely than others to contract the virus as a result of performing their work duties and “urged” employers to presume such employees are covered by the Indiana Worker’s Compensation Act if they are quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure or they are diagnosed with COVID-19 (with or without a test). However, if employers choose to dispute such claims, employees will ultimately still bear the burden of proving their case. 

In Missouri, an employee bears the burden of proving that an occupational disease was contracted as a direct result of employment or that the employment subjected the worker to a hazard that is greater than that which the employee would have been subjected in non-employment life.  However, in response to the COVID-19 pandemic, the Missouri Department of Labor and Industrial Relations issued its own Emergency Rule creating a presumption that first responders infected by or quarantined due to COVID-19 will be deemed to have contracted a compensable occupational disease arising out of or in the course of the performance of their employment. The Rule’s definition, however, is limited to first responders and includes law enforcement officers, firefighters and EMTs. 

In Wisconsin, for COVID-19 to be covered by worker’s compensation, it must be established that contracting the disease was work-related. In other words, there must be evidence to prove that contracting COVID-19 arose out of the worker’s employment while performing services incidental to employment. Thus, to date no policy changes have been implemented.  However, legislation is pending that would presume that any injury to a “first responder” during this public health emergency is caused by the individual’s employment.

Of course, as with all COVID-19 matters, readers must continue to monitor local and state developments carefully.  We expect more states to broaden worker protections in the coming days and weeks. 

With the above in mind, employers are encourage to assess their injury/illness reporting processes and procedures and give particular attention to ensuring that the latest CDC guidelines concerning a safe work environment are followed closely.