COVID 2 Years In: Biggest Wage And Hour Issues

(March 9, 2022, 4:38 PM EST) -- As the COVID-19 pandemic enters its third year, wage and hour issues around hazard pay, screening time and remote work have come up in litigation, and with some of those cases still pending, issues remain unresolved.

Friday marks the second anniversary of the World Health Organization's COVID-19 pandemic declaration. Since then, more than a dozen employer or employer groups have sued to block coronavirus hazard pay ordinances, while federal employees have brought more than 20 cases seeking emergency pay bumps.

Two years into the COVID-19 pandemic, some workplace wage and hour issues remain unresolved, including whether employers should pay workers for time spent undergoing temperature checks or answering health questions. (AP Photo/Charlie Riedel)

There have also been lawsuits by workers seeking pay for time in mandatory health screenings, and questions have come up around pay for COVID vaccination time. For workers outside of offices, the shift to remote work has led to questions about expense reimbursements and off-the-clock work.

There have been few if any precedential rulings on such issues, leaving them largely unresolved, even two years into the pandemic, attorneys said.

"I think as we move into this next year that a lot of the scramble is over of how to deal with these issues," said Tina Tellado of management-side firm Holland & Knight LLP, but "judicially they remain unresolved."

Here, Law360 looks at the pandemic's biggest wage and hour issues.

Workers Sought, and Employers Fought, Hazard Pay

Much of the COVID wage and hour litigation has been around whether workers should receive temporary hazard pay bumps for working during the health emergency.

Employers or employer groups have brought at least 13 suits challenging local ordinances requiring them to provide extra pay to certain groups of workers. Nearly all the suits alleged violations of equal protection and contracts clauses of the federal and state constitutions.

Three of those cases went to federal appeals courts, and one went to the Maine Supreme Judicial Court. Two years into the pandemic, none of the suits have been successful.

Courts generally have agreed with cities that the equal protection claims would be subject to a rational-basis test instead of strict scrutiny and that the ordinances survived under the more lenient test. Courts have also said the contracts clause claims failed under a test for such a violation because the ordinances were valid exercises of police powers.

One of the cases, by Southern California Healthcare System Inc. against Culver City, California, remains under appeal in the Ninth Circuit. Employers or employer groups have also dropped some of the challenges as hazard pay periods have ended.

"We've seen in most of the cities that hazard pays have expired, which makes, essentially, the issue moot," said Pankit Doshi of management-side firm McDermott Will & Emery LLP. "The issue has been put to rest. It came up, I'd say, during a height of the pandemic when these issues were ripe."

Workers have also sued to get hazard pay. Federal employees have filed at least 21 suits seeking extra pay from the government under statutes for hazardous duty pay and environmental differential pay.

"Some workers … had to report during the period of national emergency, before there was an effective vaccine, to work in person," said Michael Morrison of Alexander Morrison & Fehr LLP, who is representing federal employees seeking hazard pay. "Exposure to biological toxins and viruses is a ground for increased hazard pay, and we don't think that these things were already factored into the pay."

The government, which has previously not responded to requests for comment on the cases, has argued in court that the Federal Circuit should follow its 2007 holding in Adair v. United States that corrections officers didn't qualify for environmental differential pay for working around secondhand cigarette smoke.

Now at least 20 of the cases are on hold until the Federal Circuit rules in Adams v. U.S., in which corrections officers are seeking the extra pay.

"That ruling's going to be important because it'll dictate whether certain federal employees are entitled to hazard pay," said Don Foty of Hodges & Foty LLP, who is representing postal workers in a hazard pay case. "That's potentially a case dispositive ruling that will either say these cases can move forward or they can't."

Pay for Screening and Vax Time

When employers established COVID screening requirements, questions arose over whether the screening time was compensable. Workers have filed well over half a dozen suits, including against Walmart and Victoria's Secret, claiming employers owed them pay for pre-shift time undergoing temperature checks or answering health questions.

The U.S. Department of Labor issued guidance saying employers should compensate workers for COVID temperature screening time if the checks were necessary for the main work activity. But workers and employers have disagreed about whether the checks were necessary.

Workers have argued that COVID screenings are like security checks, which courts have in some cases found to be compensable.

"The time that you're required to stand in line to have someone…put that thing to your forehead and clear you to work, it's the same thing as someone checking your bag to see if you stole something," said Morrison of Alexander Morrison & Fehr. "It's mandatory, it's part of your job, you're under the control of the employer, and therefore it's compensable."

But employers have argued that the screenings aren't integral and indispensable. There do not appear to have been any substantive rulings yet on the issue, and cases are ongoing, including in California and Florida federal courts.

"It's still being played out in the courts," said Foty of Hodges & Foty, who is representing workers in screening cases. "We don't have a lot of decisions related to this."

As the pandemic has gone on and vaccination requirements have in some workplaces replaced screening requirements, the issue has evolved, attorneys said. New questions have come up over whether vaccination time is compensable.

The screening and vaccination time issues "flow from one to the other," Holland & Knight's Tellado said. "Through the course of the pandemic, we've been dealing with issues as they come along."

Remote Work Raises Reimbursement, Compliance Concerns

Issues have also come up outside of workplaces. As many workers have gone remote, some have claimed that they have had to do unpaid work, and there have also been questions around expense reimbursements and which state laws apply.

To avoid such issues and questions, employers should be clear about their policies for remote workers, attorneys on both sides said.

"The most important thing with remote work and wage and hour issues is creating and updating remote-work policies," McDermott's Doshi said.

"Whether it's reimbursements, whether it's meal and rest breaks, overtime wages, communicating while working remotely, what the work boundaries are, managing security issues, having all of that in remote-work policies but then also reviewing them and updating them regularly, those are going to be critical," Doshi said.

Employers have not always been clear with remote workers about such policies, Morrison said.

"The issue we're seeing is employers are not providing written instructions and rules," Morrison said.

Dealing with remote-work issues should not be entirely foreign to employers, Morrison said.

"There's always been a class of employees that had to work remotely, and from that there's been a whole body of wage and hour law that has come out of that," Morrison said. "It's not like employers don't have any experience with this."

--Additional reporting by Jon Steingart and Daniela Porat. Editing by Nick Petruncio.

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