Hey Compliance Warriors!
Businesses across the U.S. are reopening. Many employers are taking employees’ temperatures before the start of a shift or have employees complete a health screening process before reporting to work. If an employee shows up to work his or her scheduled shift, and a temperature check reveals a fever or the employee otherwise exhibits symptoms of COVID-19 and the business tells the employee to go home, must the employer pay that employee because he or she reported to work? Read on…
Eight states plus the District of Columbia have varying degrees of what is commonly referred to as “Reporting Time Pay.” Generally, Reporting Time Pay kicks in when an employee must report for work and does report, but is not put to work or is sent home before completing at least half of his or her scheduled shift. Consequently, employers in California, Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Rhode Island, and Washington, D.C., may be facing minimum pay requirements for sending employees home for exhibiting COVID-19 symptoms. In the remaining 42 states there is no statutory requirement to pay an employee for any minimum amount of time for simply reporting for duty.
Even in those jurisdictions that do impose Reporting Time Pay requirements, it is not always clear whether being sent home due to exhibiting COVID-19 symptoms will trigger an obligation to pay. While some states like Massachusetts, New Jersey, and Rhode Island leave no doubt that Reporting Time Pay is owed, others like New York are more complicated, or even provide arguably applicable exceptions to Reporting Time Pay, similar to California, Connecticut, and Oregon. Before an employer decides not to pay for Reporting Time Pay in one of these jurisdictions when sending an employee home with visible COVID-19 symptoms, an employer should consult with counsel to review the facts against any applicable exceptions and cautiously weigh the risks.
The following provides a brief overview of the nine jurisdictions with Reporting Time Pay requirements.
All California employees who report for work are entitled to be paid for half of their scheduled shifts. The Reporting Time Pay must be at least two hours, but no more than four hours of pay at the employee’s regular rate of pay.1 However, this requirement does not apply when: (1) operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) the interruption of work is caused by an Act of God or other cause not within the employer’s control.2 While a California employer could argue that an employee’s visible symptoms of COVID-19 are a “cause not within the employer’s control,” the California Division of Labor Standards Enforcement (DLSE) has published FAQs that suggest otherwise. Regardless, any employer who relies on this exception must be prepared to prove that the exception applies (i.e., that the employer sent the employee home because the employee exhibited symptoms of COVID-19 and that the employee’s condition was “beyond the employer’s control”). Reliance on this exception requires at least two things: First, the employer will need to retain evidence that the employee exhibited symptoms of COVID, which could trigger privacy and HIPAA concerns related to collection and preservation of evidence. Second, the employer may need to rebut an argument that the employee contracted the illness at work because the employer failed to adequately disinfect or to adequately monitor and enforce social distancing requirements. If the employee could have contracted COVID-19 either at work or outside of work, the Workers’ Compensation Appeals Board will more often than not conclude that any illness was contracted at work.3 This policy would undercut the employer’s argument that the employee’s illness was something “beyond the employer’s control.” Therefore, it may be more cost effective to simply pay the reporting time pay than to pay for the cost of litigation and risk both having to pay the reporting time pay and associated penalties (including possible exposure under California’s Private Attorneys’ General Act (PAGA)).
In Connecticut, Reporting Time Pay requirements only apply to employees in the mercantile (retail) or hospitality/restaurant industries. Mercantile industry employees reporting for duty on any day must be compensated for a minimum of four hours’ earnings at their regular rate.4 The only exception to this rule is if the employee, and employer, previously agree in writing to regularly scheduled employment of less than four hours, and the Connecticut Department of Labor approves, then this requirement may be waived provided the minimum daily pay in every instance is at least twice the applicable minimum hourly rate.5
Hospitality/restaurant employees are only entitled to a minimum of two hours’ pay. However, if the hospitality/restaurant employee is unwilling or unable to work for the number of hours necessary to insure the two-hour guarantee, a statement signed by the employee supporting this situation must be obtained and retained in the employee’s personnel file.6 While an employer may argue that an employee who exhibits COVID-19 symptoms is “unable to work,” it is the view of the Connecticut Department of Labor that because a temperature check or health screening time is compensable, it necessarily triggers the Reporting Time Pay obligation. Accordingly, if a hospitality industry employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home, he or she is entitled to two hours of pay.
Employers in Connecticut should work with counsel to determine whether their business is considered part of the mercantile or hospitality industries and whether Reporting Time Pay requirements are triggered under specific scenarios.
District of Columbia
In our nation’s capital, Reporting Time Pay requirements apply to all employees regardless of industry: employees must receive at least four hours of pay for reporting to work if the employee is given less than four hours of work that day.7 If the employee is regularly scheduled for less than four hours a day, then the employee must be paid for those hours regularly scheduled, but not provided.8 Accordingly, if an employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home, he or she is entitled to four hours of pay (or the equivalent of their scheduled shift if less than four hours). The caveat here may be that if an employee has already worked at least four hours, and is thereafter sent home, the Reporting Time Pay obligation is not triggered. Employers in D.C. should consult with counsel to weigh the risks related to Reporting Time Pay for employees sent home after completing at least four hours of work.
If an employee in Massachusetts is scheduled to work three or more hours, and is not provided with the expected hours of work, the employee is entitled to at least three hours of pay.9 The only exception tothis requirement is for charitable organization employers with approved 501(c)(3) status.10 Accordingly, if an employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home, he or she is entitled to three hours of pay (unless the shift had been scheduled for less than three hours).
A New Hampshire employee is entitled to Reporting Time Pay of no less than two hours at his or her regular rate of pay.11 The only exemption from this rule applies to employees of counties or municipalities, or ski and snowboard instructional employees at ski resorts, provided these employees meet other compensation requirements.12 There are no further exceptions. Accordingly, if an employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home, he or she is entitled to two hours of pay.
A New Jersey employee reporting for duty must be paid for at least one hour of work, unless the employer has made available to the employee the minimum number of hours of work previously agreed upon for that day.13 There are no further exceptions. Accordingly, if an employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home, he or she is entitled to one hour of pay.
For all New York employees other than those in the hospitality industry, if the employee reports to work and is sent home, the employee is entitled to at least four hours of pay, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.14 Accordingly, if an employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home he or she is entitled to four hours of pay. Here, however, the employee must be compensated at his or her regular rate of pay for all time actually worked, but may be compensated at the base minimum hourly wage for any hours not spent working to make up the time difference to the four-hour guarantee.
As for New York hospitality employees, Reporting Time Pay depends on the number of shifts the employee is scheduled to work on a particular day. A hospitality employee is entitled to his or her applicable wage rate for: (1) at least three hours for one shift, or the number of hours in the regularly scheduled shift, whichever is less; (2) at least six hours for two shifts totaling six hours or less, or the number of hours in the regularly scheduled shift, whichever is less; and (3) at least eight hours for three shifts totaling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.15 The applicable wage rate includes: (1) payment for the time of actual attendance (hours actually worked) calculated at the employee’s regular or overtime rate of pay, whichever is applicable, minus any customary and usual tip credit; and (2) payment for the balance of the period calculated at the basic minimum hourly rate with no tip credit subtracted.16 Accordingly, if a hospitality employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home, he or she is entitled to a number of hours of pay depending on how many shifts they were scheduled for that day.
New York employers should consult with counsel to determine whether their business is considered part of the hospitality industry and whether Reporting Time Pay requirements are triggered under specific scenarios.
Oregon is the least restrictive of the nine jurisdictions with Reporting Time Pay requirements. In fact, Oregon’s Reporting Time Pay only applies to minors under age 18.17 For minor employees who report to work, Oregon requires that the employer provide “reasonable compensation” to the minor who is not provided with at least half the scheduled shift.18 Like California, Oregon also provides an exception to this rule when “circumstances beyond the employer’s control prevent the performance of the work the minor was to perform.”19 The Oregon employer would be similarly hard pressed to argue that the minor’s COVID-19 symptoms were out of its control if the minor contracted the virus while at work for the employer. Accordingly, it may be more cost effective to simply pay the Reporting Time Pay than endure the risk of litigation and/or any associated penalties. Oregon employers of minors should consult with counsel determine whether Reporting Time Pay requirements are triggered under specific scenarios.
Similar to Connecticut and Massachusetts, Rhode Island requires that employees receive a minimum of three hours of Reporting Time Pay (or amount of time expected if the shift was previously agreed to be less than 3 hours by both the employee and employer).20 The only exception to this rule applies to students enrolled full-time at Rhode Island colleges or universities who are also employees of the college or university (provided they meet further shift-length requirements).21 There are no further exceptions. Accordingly, if an employee reports to work, but exhibits symptoms of COVID-19 and is asked to go home, he or she is entitled to three hours of pay.
When in doubt, if an employee is sent home for exhibiting COVID-19 symptoms, employers in one of these nine jurisdictions should consider paying for the minimum Reporting Time Pay owed in their state, even if an exception might apply. Employers should consult with counsel before deciding to withhold Reporting Time Pay under any exception.