The Department of Industrial Relations Issues New Guidance

Posted: August 7, 2020 | News

The Department of Industrial Relations ("DIR") recently published "Safe Reopening FAQs for Workers and Employers" to address various workplace-related issues as California proceeds through its Resilience Roadmap.
 
The FAQs offer insight on the DIR's perspective about how employer-required COVID-19 medical screenings impact various wage and hour issues. While the updated FAQs are not binding on the courts, they indicate how the Labor Commissioner is likely to enforce certain wage and hour laws relating to employer-required medical checks. It is recommended, therefore, that employers review the updated DIR guidance.
 
Paying Employees for Temperature Checks and Other COVID-19 Screenings at the Workplace
 
According to the DIR, if an employer requires its employees to be medically screened onsite before beginning a shift, the time spent completing the medical check, including any time waiting in line, constitutes time worked and must be paid. This means that time spent undergoing a temperature check before entering the worksite or answering questions about COVID-19 symptoms must be included in hours worked. The DIR states that this requirement applies even if the screening is performed pursuant to a state or local public health guideline because the check is done at the request, and thus under the control, of the employer.  
 
Paying Employees for Temperature Checks and Other COVID-19 Screenings at Home
 
The DIR states that whether time spent at home performing medical screenings constitutes hours worked depends on the factual circumstances of each case, including the level of control exercised by the employer. According to the DIR, if an employer simply requests that workers take their temperatures at home and conduct a brief wellness check before coming to work, this time need not be paid because the employer's level of control over the employee is slight.
 
Alternatively, the DIR states that time performing medical checks at home likely would be compensable hours worked if, for example, an employer mandated that workers spend a few minutes before every shift following a set of detailed procedures using a particular cell phone application to take and record their temperature and then fill out a health questionnaire of non-trivial length. In that case, the employer would be exercising a high degree of control over the manner and timing of the screening.
 
Reimbursing Employees for Cell Phone Use as Part of Screening Procedures
 
In addition, the DIR states that if an employee is required to use a personal cell phone as part of a medical check, the employer must pay a reasonable percentage of the cell phone bill to compensate the employee for the portion of time the employee spends on the phone following the employer's directions. The DIR suggests that one method that may be used to calculate a reasonable percentage is to determine what portion of the total time an employee spends monthly on the personal cell phone used for the health screening.
 
If you have any questions or concerns regarding how your business may be impacted by wage and hour policies related to COVID-19, the attorneys at Ferruzzo & Ferruzzo, LLP are available to provide guidance.
 
This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group who are ready to assist you.
 
This Article is one of a series of Articles Ferruzzo & Ferruzzo, LLP will be circulating to address questions from clients related to COVID-19. Ferruzzo & Ferruzzo, LLP has formed a task force to assist business owners with their needs related to COVID-19. 
 

Alison C. Gibbs

Alison C. Gibbs, Esq. is a Senior Associate of the firm's Employment Practice Group.  Alison represents employers in a wide-range of employment-related litigation, including wage and hour defense, and defense of discrimination, harassment and retaliation claims.  Alison also regularly advises employers before litigation ever occurs, handling employment disputes and managing day-to-day employee issues, including reviewing employee handbooks policies, wage and hour compliance, leave issues, internal investigations, lay-offs, disciplinary action, terminations, severance negotiations, and other employment practices