All posts by Waltz, Palmer & Dawson, LLC

Manila folder with several IRS forms next to a pen and a cup of coffee

HOW TO IMPLEMENT THE PAYROLL TAX HOLIDAY

Recently, the President issued a memorandum on “Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster.” This memorandum institutes a payroll tax holiday for the rest of 2020, specifically for social security. The IRS also issued guidance on the memorandum for interpretive purposes.

General Policy

Employers that are required to withhold and pay the employee’s share of social security tax (or the railroad retirement tax equivalent) have the option of deferring those taxes for the period of September 1, 2020 through December 31, 2020. However, employers must still contribute their own portion for each worker.

This deferral is only to be made available to employees with pre-tax wages less than $4,000 in a biweekly pay period, or the equivalent amount with respect to other pay periods. Amounts deferred pursuant to this tax holiday will be deferred without any penalties, interest, additional amount, or addition to the tax.

However, this is a deferral, not a waiver. While not in the executive memorandum itself, the IRS guidance states that any and all withheld taxes must be paid back between January 1, 2021 and April 30, 2021. In the event that the funds are not paid back, interest, penalties, and additions to the tax will begin to accrue on May 1, 2021 on the amount of the unpaid taxes. Further, the guidance states that, if necessary, employers may “make arrangements to otherwise collect the total Applicable Taxes from the employee.”

Who Gets to Decide Whether the Deferral Is Made?

Nothing in the memorandum or IRS guidance specifically lays out whether the employer or employee is the one who has the discretion to choose the deferral. However, the IRS guidance does make references to “allowing employers” to make the deferral, and employers are defined as the “Affected Taxpayers” in the guidance, as well. So, while not explicit, the executive branch has suggested that employers are the ones who have the discretion on whether to defer the tax, not employees.

What If an Employee’s Wages Fluctuate?

While the payroll tax deferral only applies to employees who make less than $4,000 in a biweekly pay period, this determination should be made on a pay period-by-pay period basis. If an employee makes $4,005 during the first biweekly pay period but makes $3,997 the following pay period, the employee is eligible to have their taxes deferred during that second pay period, but not the first.

While this is good news for employees whose wages may fluctuating above and below the threshold amount, it is doubly important for employers to make sure they are keeping accurate accounts of when these employees are eligible for the deferral and when they are not.

Do I Have to Withhold Double the Taxes Next Year?

That seems to be the case. Presumably, social security taxes will be due as normal throughout the months of January 1, 20201 to April 30, 2021. So, absent any information to the contrary, it is likely that employees will be taxed as usual for those months, and will also need to pay back the deferral amount during that period, as well. The most straightforward interpretation seems to suggest that employers could potentially withhold double the amount of social security during those months for each biweekly pay period that they were deferred in 2020. However, the Treasury Department may very well come out with more guidance in the following months that provides insight into how the deferred taxes should be paid back next year.

Can Employees Instruct Employers Not to Defer the Taxes?

Nothing in the memorandum or IRS guidance speaks to this. What we do know is that, as mentioned above, the language in the IRS guidance suggests that employers are the ones who have the discretion of whether or not to defer the taxes.

Should I Defer or Should I Not?

That’s a business operational question that largely depends on your individual circumstances. In terms of the big picture implications, that are pros and cons. The payroll tax deferral could be a huge help to employees who may be financially struggling during this pandemic. But while they might receive larger paychecks this year, their checks could be significantly smaller next year if they are double-taxed.

For employers, you could provide a real boost in morale in the workplace by allowing employees to take home a bit more on their paychecks this year, however there is a lot of detailed bookkeeping that needs to happen in order to make sure only eligible employees are receiving the tax deferral and that the money is paid back next year.

There is also the potential issue that an employee quits during the repayment period next year. In the event that an employer decides to defer the taxes for this year but an employee quits in January, the employer may become liable for the amount that was deferred.

If I Choose to Defer, Do I Need to Notify Employees?

While the memorandum and IRS guidance don’t provide instruction on how employers are supposed to go about making the deferral, notifying your employees about your decision is advisable. For transparency’s sake, employees should be definitively told whether or not their paychecks will be affected.

In the event that you choose not to defer, a simple notice to your employees stating that you will continue withholding social security from their paychecks as normal should suffice.

However, if you do choose to defer, further detail should be provided to employees so they are on notice of what to expect regarding their paychecks going forward. In your notice, you should include what makes an employee eligible for the deferral, what percentage of their check will not be withheld, the period during which you plan to defer the taxes, and a reminder that the taxes must be paid back during the first four months next year.

Another potential avenue that employers could take is to offer the option to employees. However, if you allow employees to voluntarily opt in or out of the deferral, you should do so by using a request form for employees to fill out.

There may also be applicable state laws that affect the type of notice you need to provide to employees regarding the tax deferral. It is important to speak with an attorney prior to making the deferral to make sure you are in compliance with both federal and state law.

Is There a Chance of This Deferral Becoming a Waiver?

While the President has stated that he may make the decision to waive the taxes, the executive branch’s power only goes so far as deferral. It would take Congressional action to turn the tax deferral into a waiver, and as of right now, such legislation is not on Congress’s calendar. So, for now employers should assume that this will remain a deferral and act on that accordingly.

Should you have any questions about the payroll tax holiday or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.

set of 3 teal surgical masks fanned out on a gray background

NEW EMERGENCY COVID-19 RULES FROM ILLINOIS DEPARTMENT OF PUBLIC HEALTH

Effective August 7, several new emergency rules have gone into effect related to the COVID-19 pandemic. These rules were adopted by the Illinois Department of Public Health (IDPH) in response to Governor Pritzker’s Gubernatorial Proclamations and Executive Orders. They will remain in place for a maximum of 150 days.

General Provisions

At its core, these new rules were adopted in order to clarify the IDPH’s role in investigating and suppressing the pandemic. Businesses across the state have been somewhat confused as to what authority IDPH had related to COVID-19, particularly in the context of investigations that other agencies, such as OSHA, are allowed to do.

These new rules make it clear that IDPH “has jurisdiction to address dangerously contagious or infectious disease outbreaks to protect the health and lives of the people of the State. The Department shall take means it considers necessary to restrict and suppress dangerously contagious or infectious diseases, especially when existing in epidemic form.”

Restrictions and Requirements

The IDPH has implemented a number of restrictions and requirements, several of which mirror the rules in Governor Pritzker’s executive orders.

Individuals over the age of 2 who are able to medically tolerate a face covering are required to cover their nose and mouth when in a public place and unable to maintain at least a 6-foot distance from others. This requirement is applicable both indoors and outdoors.

Further, any business, service, facility, or organization that is open to the public or employees must require employees, customers, and any other individuals on the premises to comply with the above rule. Businesses that serve food and/or beverages may permit individuals to remove face coverings while eating or drinking, but employers need to require the coverings at all other times. The emergency rule is clear, however, that employers who “take reasonable efforts” to comply with this rule shall be in compliance.

The IDPH is signaling to us that they recognize businesses cannot always control what patrons and employees do, so the best advice now is to do all you can to show that you have these requirements in place at your place of work and that you are enforcing them to the best of your abilities.

IDPH further elaborates on this by saying that, for retail business in particular, “reasonable efforts” will be determined based on all relevant facts. These could include posting signage that requires face coverings be worn, providing face coverings to customers, giving verbal warnings to customers, and requesting customers leave if they fail to wear a face covering.

Schools

Schools (including preschool, public and nonpublic K-12 schools, higher ed, vocational programs, and day cares) must require students, employees, and other individuals to wear face coverings, as well. These institutions may permit face coverings to be removed when eating or drinking, when individuals are outdoors and social distancing is maintained, and while playing instruments, if necessary.

Another rule that mirrors the executive orders is that gatherings of more than 50 people (or more than 50% of building capacity if maximum occupancy is less than 50 people) are prohibited unless exempted by law or executive order.

Enforcement

The IDPH has added “local health departments” to the list of enforcing entities who have authority to make sure that the rules adopted by the Department are enforced.

Despite the fact that businesses have an obligation to make sure individuals are wearing face masks on the premises, the new emergency rule clarifies that no one individual will be held responsible for compliance with the rule on behalf of the business, even if that individual is an owner, officer, principal, or employee of the business. Liability for failure to comply with the rule is limited to the entity itself.

However, the liability for the businesses still exists and comes with consequences for failure to comply. Businesses open to the public will first be given a written notice of non-compliance by an enforcing entity and reasonable opportunity to take “prompt actions” to comply. However, the reasonableness of that time period is at the discretion of the enforcing entity and depends upon the specific facts and circumstances of the case at hand.  Enforcing entities may observe until voluntary compliance is achieved or return at a later time to ensure that compliance was achieved depending on the time period provided to allow for compliance.

The secondary level of consequences will be a written order to the business to have all or some of the people on the premises disperse (an “order to disperse”), until such time as the business is in compliance.

Third, if the order to disperse is not adhered to, the business will be subject to penalties pursuant to a Class A misdemeanor.

Investigations and Closures

The IDPH has also clarified its authority to investigate cases of COVID-19 and initiate workplace closures. The emergency rules state that IDPH and local health authorities can investigate cases, suspect cases, or carriers of COVID-19 in a public or private place for purposes of verifying the existence of the disease, locating and evaluating contacts, identifying those who are at risk, and determining necessary control measures. Such investigations may include IDPH officials entering businesses to facilitate these goals.

In the event that two or more suspected cases of COVID-19 occur in any business, organization, school, etc. the owner or person in charge must cooperate with public health authorities in the investigation. Furthermore, the IDPH may order the closure of a business, service, facility or organization, school or day care.

Should you have any questions about COVID-19, the IDPH’s new emergency rules, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.

 

logo for the Occupational Safety and Health Administration (OSHA)

OSHA FREQUENTLY ASKED QUESTIONS

As many employers have probably realized by now, the rules set by the Occupational Safety and Health Administration (OSHA) play an extremely important part in how businesses need to address the current COVID-19 pandemic. But complying with all these different rules and regulations can be confusing for even the savviest business owner, which is why OSHA recently published a new FAQ page to address common questions related to the virus. This blog post discusses some of the more pertinent issues for small business owners, but other concerns are addressed on the webpage, as well.

Preventative Steps

One of the biggest questions that we’ve been getting from employers is what steps to take in order to prevent an outbreak and protect employees at work. OSHA and the Centers for Disease Control and Prevention (CDC) have published guidance for employers to address the pandemic. These resources include guidance on how to develop preparedness plans, clearly communicate those plans with employees, and effectively train employees on new procedures.

Employers are encouraged to assess worker exposure to the risks and hazards related to COVID-19. Furthermore, employers should implement infection prevention measures that are in compliance with OSHA standards. These measures include:

  1. Frequent and thorough hand washing or sanitizing with at least 60% alcohol sanitizer
  2. Encouraging employees to stay home when sick or exhibiting symptoms
  3. Encouraging the use of face masks
  4. Training employees on respiratory etiquette (e.g. cough into elbows), social distancing, and other protective steps

The U.S. Department of Labor (DOL) and Department of Health and Human Services (HHS) have more information on other steps that employers should take to prevent the spread of COVID-19 in the workplace.

What Do I Do When an Employee Tests Positive for COVID-19?

In the event you have an employee who tests positive for COVID-19, it is likely that the employee will be advised to self-isolate or seek medical care. If not given such guidance by a healthcare professional, you should still require that the employee stay home until their symptoms subside and they can discontinue home isolation, pursuant to CDC guidance.

OSHA encourages employees to report to their employers if they have tested positive for COVID-19. Employers who become aware of a confirmed employee case need to take proper cleaning and disinfection measures to protect other employees. The CDC has recommendations for community-related exposure to someone with known or suspected COVID-19, recommendations for when employees can return to work after having COVID-19, and recommendations for cleaning and disinfecting the workplace to protect others.

Do I Need to Notify Other Employees Once There is a Confirmed Case?

Employers are not under any legal obligation to notify other employees if a coworker has COVID-19. However, employers are obligated to provide a safe workplace for employees and therefore take appropriate steps to protect other employees from exposure to the virus at work. This may involve cleaning and disinfecting the workplace, notifying other employees to monitor themselves for symptoms, or implementing a screening program. The CDC provides employers with guidance to determine which employees have been exposed and inform other employees of the potential exposure.

Any disclosure regarding a confirmed case of COVID-19 should still remain in compliance with confidentiality obligations related to medical information, pursuant to the Americans with Disabilities Act (ADA). Information that is disclosed should comply with applicable federal, state, and local laws.

Recording Work-Related COVID-19 Cases

Generally speaking, employers are required to record cases of fatalities, injuries, and illnesses that are work-related and meet the general recording criteria. In some cases, employers are also required to report an incident to OSHA. But considering how contagious COVID-19 is, in and out of the workplace, it is extremely difficult to determine if any case of COVID-19 is work-related or not. This is only further exacerbated when an employee has been potentially exposed both inside and outside of their workplace.

For information on how to navigate the difficult work-related determination, see our previous blog post on OSHA’s updated enforcement guidance for recording.

Are Any of OSHA’s Regulations Waived During the Pandemic?

No. All of OSHA’s rules and regulations remain in full force and effect. However, OSHA recognizes the difficulty involved in complying with certain requirements during this pandemic, which is why it is exercising temporary enforcement discretion for certain OSHA provisions. OSHA has provided employers with a Standards page that lists all enforcement discretion memoranda related to COVID-19.

What If an Employee Reports My Business to OSHA?

It is extremely important for employers to remember that there are a number of protections that are afforded to employees when it comes to work safety. Under no circumstances should you retaliate against an employee for making a report to OSHA or otherwise raising health and safety concerns related to this pandemic.

The best way to avoid such complaints is to follow government guidance on cleaning and disinfecting your workplace and implementing policies to curb the spread of infection, such as mandatory PPE and social distancing. If you become aware of a report that is made against your business, or are subject to an inspection by OSHA or the Illinois Department of Public Health (IDPH), it is advisable to speak with an attorney to help you navigate the particulars of complying with a government entity.

Other General Information

OSHA has a COVID-19 Safety and Health Topics page that is a great starting point for the most up-to-date guidance on OSHA requirements.  Some of the resources include Guidance on Preparing Workplaces for COVID-19, Worker Exposure Risk to COVID-19,  a list of relevant OSHA standards for COVID-19, and temporary enforcement guidance in effect during the COVID-19 pandemic.

The CDC also has resources for businesses and employees, including health and safety steps for specific occupations.

Furthermore, it’s extremely important to remember that OSHA is not the only entity you need to be concerned about when it comes to compliance with COVID-19 regulations. State and local laws play a large role, as well. For example, the Illinois Department of Public Health (IDPH) recently has started to require that if two or more employees report having COVID-19 related symptoms, or test positive for COVID-19, the employer should notify their local health department within 24 hours of being informed of such. While OSHA is important to be aware of, there are other government entities and laws that your business needs to stay on top of in order to stay in compliance.

Should you have any questions about recording vs reporting for OSHA purposes, whether you are exempt from any obligations under OSHA regulations, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.

 

close-up of a gavel with black background

DON’T FORGET ABOUT JULY EMPLOYMENT LAWS

While COVID-19 has us all scrambling to find a sense of “normal” in the workplace nowadays, it’s important that we don’t lose sight of other issues that can have a significant impact on our businesses. As you may remember, January of this year brought about quite a few changes to employment laws, and resulted in a large number of businesses having to update their employment policies. Well, the same thing happened a couple months ago in July! Don’t forget about these important employment laws that are currently affecting your business.

Minimum Wage

The minimum wage has increased to $10 per hour as of July 2020, and is scheduled to increase again in January 2021 to $11.

Small Businesses Now Liable for Discrimination

As a general rule under the Illinois Human Rights Act (IHRA), employers are prohibited from unlawfully discriminating against employees on the basis of their protected class status. These classes include things like race, nationality, age, etc. But the definition of employer was always limited to those who employ fifteen or more people. So small businesses with fewer than fifteen employees were not held liable for actions that would have otherwise been considered discrimination at the state level.

That is now no longer the case. The new definition of “employer” under the IHRA is any person employing one or more employees within Illinois during twenty or more calendar weeks within the calendar year of or preceding the alleged violation. So, small business owners should be very careful going forward and review their policies on hiring, firing, promoting, etc. Consult with an attorney before taking employment actions against your employees if you otherwise haven’t had to deal with these sorts of issues in the workplace before. The last thing you want is to have the Illinois Department of Human Rights (IDHR) contact you about a discrimination claim.

Disclosure of Discrimination Information

If the liability for discrimination itself isn’t a big enough concern, consider that starting July 1, employers are required to annually disclose information about all adverse judgments or administrative rulings against them in the preceding year, and how many of each are in particular categories (sexual harassment, racial discrimination, etc.).

Employers may also be required to disclose the number of settlements from the preceding five years that relate to sexual harassment or unlawful employment practices 1) if they occurred in the workplace or 2) involved the behavior of an employee or corporate executive, regardless of whether it occurred in the workplace. Even further, employers might also need to disclose what categories the settlements fall into.

Hotel and Casino Employee Safety Act

This brand new act requires hotels and casinos to equip employees who work alone in guest rooms, restrooms, or casino floors with a safety or notification device (i.e. panic button) that will summon help if the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault, or other emergency is occurring in the employee’s presence.

Chicago Fair Workweek

A big change is coming up soon for Chicago employers – it’s called the Fair Workweek Ordinance. At its core, the ordinance is an effort to make sure that employers provide employees with sufficient notice of the hours they are required to work.

Not all businesses are subject to the ordinance, though. “Covered Employers” who must comply with the ordinance are those that meet the following criteria:

  1. Globally employ 100 or more employees (or 250+ for nonprofits), 50 of whom are “Covered Employees”
  2. Said “Covered Employees” make either less than or equal to $50k/year or less than or equal to $26/hour
  3. Engaged in certain industries including Building Services, Healthcare, Hotels, Manufacturing, Restaurants, Retail, and Warehouse Services

Prior to commencement of employment, employers must provide prospective employees with a good faith estimate of the employee’s projected days and hours for their first 90 days of employment.

Further, employers must provide employees with written notice of their work schedules at least 10 days in advance (and this requirement will increase to 14 days starting July 1, 2022). Failure to provide proper notice will result in the employer having to pay penalties such as an hour of “predictability pay” or half of the pay an employee would’ve earned for that day (depending on things like whether the employer cancelled a shift, changed hours, and how short of notice the employer gave to the employee regarding the change).

Employers who are subject to a Collective Bargaining Agreement (CBA) are not responsible for complying with portions of the ordinance that conflict with the CBA. But it is important to note that CBAs entered into after July 1, 2020 must clearly waive the ordinance requirements using “clear and unambiguous terms.” Failure to do so may lead to being held responsible for any non-compliance.

Does COVID-19 Have an Effect?

As with most things – it depends. Chicago is not delaying enforcement of the ordinance; however, the city has allowed for an “out” in certain cases. Back in May, the city published a new rule stating that the ordinance’s provisions regarding schedule changes will apply as normal unless a pandemic has caused an employer to “materially change its operating hours, operating plan, or the goods or services provided by the Employer, which results in the Work Schedule change.”

Interestingly enough, the rule is written in such a way to where it applies in the event of any pandemic, for which COVID-19 does qualify. This leaves open the possibility that in the event of a similar outbreak happening in the future, businesses will have some possible relief from the requirements of the ordinance.

However, it is inadvisable for businesses to make a quick decision on whether their business practices have “materially” changed or not. Choosing to not comply with any law is very significant and, when analyzed incorrectly, has the potential for serious consequences. We highly advise speaking with an attorney prior to claiming this exemption under the new city ordinance.

Should you have any questions about recent employment laws, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.

 

person in hazmat suit standing next to a car, taking the temperature of the driver

DO I HAVE TO PAY EMPLOYEES FOR TEMPERATURE CHECKS?

COVID-19 has changed a lot of the normal practices we see in the workplace. Masks, social-distancing, and not to mention unprecedented legislation on federal paid sick leave. There’s a lot that employers have to keep up with. And one of these new workplace practices is temperature checks. In an effort to increase safety within the workplace, a number of employers are now mandating that employees get their temperatures checked right before entering the building. While this can be a great idea in terms of safety, it does present a novel question regarding wage and hour law. Simply put – do you have to pay your employees for the time involved in getting their temperatures checked before work?

The Fair Labor Standards Act (FLSA) and Portal-to-Portal Act

If you’ve ever had a question regarding federal minimum wage or overtime payments, you may already know that the FLSA governs a number of wage and hour law issues. Similarly, the FLSA has a lot to say about what constitutes “hours worked” or “compensable time” i.e. what sort of activities you have to pay your employees for.  So does the Portal-to-Portal Act.

In sum, federal law requires that you pay employees for the hours they work. However, there are certain activities that may seem work-related, but do not have to be compensated for. For example, you aren’t responsible for paying your employees to pack their lunch at home in preparation for their lunch break during the day.

Activities that employees do before and after work are governed by the Portal-to-Portal Act, and are called “preliminary” and “postliminary” activities.  As a general rule, activities that are preliminary or postliminary to an employee’s principal activities are not compensable. So, answering the question regarding temperature checks is two-fold: 1) what are my employees’ principal activities and 2) is a temperature check before starting work considered to be preliminary to their principal activities?

What Are Principal Activities?

Principal activities are activities which an employee is “employed to perform.” They do not include noncompensable walking, riding, or traveling. And a principal activity doesn’t even need to be predominant in some way over all other activities that an employee performs throughout the day. Rather, an employee could be engaged in several principal activities during their normal workday. It includes all activities that are an “integral part” or that are “indispensable to its performance.”

For example, say you have an employee in a manufacturing plant who is responsible for operating a lathe. Operation of the lathe would be considered a “principal activity” of the employee’s job. It’s one of the main things they do. But cleaning the machine or installing a new cutting tool would be considered “integral parts” of that principal activity, as well. Similarly, if an employee in a chemical plant can’t perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity.

Preliminary Activities

Federal law defines preliminary activities as those that occur prior to the time on any particular workday at which an employee commences their principal activities. So, once you’ve identified what your employees’ principal activities (and related integral/indispensable activities) are, the analysis is simple – anything prior to the commencement of those activities is preliminary, and therefore does not need to be paid for.

But the question with respect to temperature checks before work is not so simple. At face value, it seems as though taking an employee’s temperature before they start work for the day is a clear example of a preliminary activity. But what if the temperature check itself was considered an integral part of an employee’s job?

The Grey Area of Integral and Indispensable

There is certainly a strong argument to say no, getting their temperature checked is not an integral part of any employee’s job. And under normal circumstances, the analysis would likely end there. However, as previously discussed, the fact that we are in an official pandemic (as declared by the CDC and WHO) has the potential to change that analysis in a significant way.

Consider this: as an employer, you have various responsibilities to protect your employees’ health in the workplace under Illinois law, such as ensuring that all your employees are wearing face masks and practicing social distancing. And while there is no explicit directive under Illinois law to send sick employees home or check their temperatures, failure to adequately address an outbreak of COVID-19 in the workplace could land you in the middle of an investigation by OSHA or the Illinois Department of Public Health (IDPH).

With that in mind, there seems to be a reasonable argument that not having COVID-19 is a necessity, and therefore checking an employee’s temperature prior to them starting work is indispensable to the performance of their job, especially because the employer is the one that is mandating the temperature check in the first place.

Under this analysis, an employee could have a potential claim against an employer for payment of wages during the time it takes to get their temperature checked – waiting in line, filling out paperwork, etc.

So, Should I Pay Them or Not?

As you can see, the law is unclear on this point. A conservative reading of federal wage and hour law would suggest that employees should be paid for the time they spend waiting at work to get their temperatures checked. But, as with most things COVID-19 related, we do not have any case law on point to give us guidance here.

This is further complicated by the fact that state law may have something to say on the matter, and that can vary greatly depending on where your business is. This is not just a federal law issue – all levels of law should be assessed before making the decision to pay or not pay for temperature checks.

Before starting temperature checks, and definitely before you decide to withhold paying employees for the wait time, you should speak with an attorney and have your particular situation carefully analyzed.

Should you have any questions about state or federal wage and hour law, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.