In an opinion issued on December 7, 2023, a federal district court in the Northern District of Illinois held that time spent in COVID screening activities was not compensable under federal or Illinois law.

In the underlying collective and class action, Johnson v. Services, LLC, the plaintiffs—warehouse employees whose job duties included moving boxes, stacking packages, and loading boxes—alleged that the defendant’s failure to pay them for time spent being screened for COVID violated the Fair Labor Standards Act (FLSA) and Illinois wage statutes.  With the COVID outbreak, the company began requiring its employees to undergo a ten- to fifteen-minute screening process consisting of a temperature check and answering health-related questions.  The plaintiffs alleges that the screening was necessary to the principal work performed by them and the class members and therefore was compensable under the FLSA and state law.

Under the Portal-to-Portal Act amendments to the FLSA, codified at 29 U.S.C. § 254(a)(2), employers are not required to pay for time spent on preliminary or postliminary activities that occur before or after the principal activity an employee is employed to perform, except for tasks that are “integral and indispensable” to the principal activities.  As the Supreme Court has explained, an activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  Ambiguity over whether certain tasks are “integral and indispensable” has contributed to litigation in recent years regarding activities such as bag checks, other security screenings, and health screenings, among other allegedly compensable tasks.

The court in Johnson held that a COVID screening is neither integral nor indispensable to the plaintiffs’ principal activities of moving boxes, stacking packages, and loading boxes, and not integral to the functioning of the warehouse generally.  The court likened COVID screenings to security screenings for theft or safety, which are “concerned with aspects of society generally.”  In other words, they “enabled to the businesses to function more efficiently or safely, but they are not necessary for the business to function on any given day.”  As such, the court concluded, neither the FLSA nor the Illinois Minimum Wage Law, which is interpreted consistently with the FLSA, requires compensation for the time spent in COVID screenings.

The court also dismissed the plaintiffs’ quantum meruit claim, noting that “the COVID screening conferred a benefit not just on [the company], but on Plaintiffs, their co-workers, and society as a whole, because it … helped mitigate a global pandemic.”

The compensability of health-related screening and testing time has been a hot topic since the outbreak of COVID.  The Johnson opinion provides some welcome clarity on the issue, although businesses must still consider whether state law in another jurisdiction might require a different analysis.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.

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Photo of Allan Bloom Allan Bloom

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages…

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York TimesReutersBloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved hundreds of millions of dollars in potential damages.

Allan is regularly called on to advise boards of directors and senior leadership on highly sensitive matters such as executive transitions, internal investigations and strategic workforce planning. He also has particular expertise in the financial services industry, where he has litigated and arbitrated cases, including at FINRA and its predecessors, for more than 20 years.
A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA, Senior Editor), Employment Discrimination Law (ABA/Bloomberg BNA, Final Proof Editor), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR, Editor), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE, Chapter Author).

Allan is a member of the NYSBA’s House of Delegates, sits on the Executive Committee of the NYSBA’s Labor and Employment Law Section, and is a Fellow of the College of Labor and Employment Lawyers. He has been recognized as a leading practitioner by Chambers since 2011.