When re-opening businesses during the Covid-19 recovery, employers may be required to pay workers for the time it takes to don their protective gear before a shift, and to doff it after the shift ends.
The Fair Labor Standards Act and state wage and hour laws require employers to record and pay their nonexempt employees for all “compensable time” for certain activities that occur before an employee begins the principal activities of the workday.
Traditionally, these tasks included security checks, checking documents, and inventory or business-related emails, 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 their work assignments, and take time to disinfect work areas and ensure proper physical distancing.
Under federal law, employees must be paid if pre- and post-shift activities are “integral” and “indispensable” to their principal activity; are not “de minimis” (10 minutes or less, but can be aggregated with other pre-shift tasks); and do not fall under some exceptions 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 N-95 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,” he adds.