A Wisconsin proposed collective and class action complaint alleging healthcare workers should be paid for undergoing mandatory COVID-19 screenings is “one to watch,” especially for healthcare employers who have a duty to protect both residents and employees, according to legal experts.
A Wisconsin-based healthcare worker filed a proposed collective and class action complaint against an assisted living facility, alleging healthcare workers should be paid for undergoing mandatory COVID-19 screenings.
In her fair standards labor complaint, former certified nursing assistant Charletta Harwell-Payne alleges Cudahy Place Senior Living in suburban Milwaukee required all employees to undergo mandatory temperature checks and complete a COVID-19 symptom checklist screening before being allowed to clock in for the day. The screenings resulted in unpaid overtime.
Also named in the suit are Chicago-based property management company Encore Management and Development, Encore Senior Living and Matthews Senior Living.
The complaint, filed under the Fair Labor Standards Act and Wisconsin wage law, asserts that Harwell-Payne had to demonstrate that she was not infected with COVID-19 by completing the screening and temperature check, making it “integral and indispensable” to her job of providing care to residents.
The complaint asserts that time spent undergoing the health screenings constituted “hours worked” under the FLSA, and that she and other employees should have been paid for their time. The complaint also accuses Cudahy Place of improperly accounting for meal breaks, failing to pay promised commissions, and failing to pay for time spent training other employees.
Cudahy Place argues that the temperature checks and screening questionnaires are not “intrinsic” to an employee’s principal job activities.
A JDSupra article said the argument that COVID-19 screenings are not a principal activity of employment “become more difficult for healthcare employees who were hired to treat sick or vulnerable patients.” The author noted that all employers may have a difficult time avoiding compensating employees for COVID screenings “where such checks are a mandatory state requirement to enter the workplace.”
The author recommends “erring on the side of caution” and compensating employees for time spent in a COVID-19 screening process — both waiting and undergoing the screening.
An attorney for Cudahy Place told McKnight’s Senior Living they could not comment on pending litigation.
