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  • Writer's pictureRic Armstrong

The Ongoing Pandemic Brings New Class Action Risks

The new COVID-19, return-to-work stage brings new risks of legal exposure. Allegations regarding off-the-clock work — a perennial source of wage and hour class and collective actions — have surfaced in new, COVID-19-related contexts.

Difficult decisions regarding which employees to bring back from furlough post-pandemic can spur systemic discrimination claims. Employers also are grappling with unanswered questions regarding the compensability of vaccination testing time, as well as state laws potentially requiring reimbursement of associated costs. And, for certain employers in a growing number of jurisdictions, recall decisions must factor in state and local right-to-return laws.

Failure to pay nonexempt employees for time spent undergoing temperature checks, waiting in line for such checks, waiting for test results (in instances where employers utilize rapid COVID-19 tests, for example), or undergoing other screening procedures before clocking in for work may give rise to class actions under state wage and hour laws, particularly in states with wage and hour statutes that do not adopt the Portal-to-Portal Act amendments to the FLSA. Indeed, a number of class action complaints already have been filed.

For example, one $5 million class action brought in Arizona alleges that a national retailer required employees to arrive 10-to-15 minutes early for their shifts in order to undergo mandatory COVID-19 screening and did not pay them for that time.

These types of cases are just beginning to be litigated, and courts will grapple with the question of whether temperature checks and health questionnaires are “integral and indispensable” to the performance of employees’ work such that employees cannot perform their work without also performing these duties.

The answer may depend on the type of workplace, as for certain occupations (such as healthcare and education) a stronger argument might be made that screening is “integral and indispensable” to an employee’s principal activity. Whether COVID-19 screenings are required by law, either due to the industry in which the employee works or because of state or local statutes, may also be relevant to the inquiry.

On-site COVID-19 screening already has spurred numerous class actions under BIPA against some of the nation’s largest employers. These complaints allege that employees were required to undergo temperature scans and facial geometry scans, without prior consent, as required under BIPA when collecting biometric identifiers.

One class action filed in July against the vendor of facial recognition technology claims that the device, used for detecting COVID-19 symptoms and whether the individual is wearing a mask, collects the biometric information from its customers’ employees without the requisite notice and consent.

COVID-19 screenings also can trigger multi-plaintiff suits under the Americans with Disability Act (ADA) or Genetic Information Nondiscrimination Act (GINA), depending on the type of data being collected and who collects it.

A number of statutes regulate the collection, sharing, and storage of data gleaned from screening of employees. Employers may measure employee temperatures, take a job applicant’s temperature as part of a post-offer, pre­employment medical exam, require employees to provide a doctor’s note confirming they are COVID-19-free when returning to the workplace, or administer COVID-19 tests to employees before they can enter the worksite. However, employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA and adhere to other applicable privacy laws.


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