Updates on Temperature Checks and the FLSA
In mid-2020, the team at Barkan Meizlish, LLP reported on the new workplace normal. Namely, we analyzed how mandated temperature checks could lead employers into hot water. Between workplace ethics and potential FLSA violations, the institution of regular temperature checks and other COVID-19 conscious practices led to these concerns. Now, in early 2021, employees across the United States are finding themselves the victims of such FLSA violations.
In a recent California federal court filing, a tennis company came under fire when employees reported underpayment of wages. This underpayment seems to be a direct result of newly instituted COVID-19 safety measures, such as temperature checks. The company expected employees to undergo such measures prior to clocking in. The FLSA protects workers from their employers expecting work be done off the clock, including meetings, pre-shift duties, and post-shift duties. Temperature checks fall under this umbrella, as both statewide mandates and employer-instituted regulations require can require employees undergo this action.
This is not the first collective and class action suit to be filed in relation to unpaid wages and COVID-19 precautions. Apple, Walmart, and Converse have all been hit with similar filings. With large companies being hit left and right with actions regarding FLSA violations and COVID-19 safety checks, small company should take note.
Some Information on the FSLA:
Employees are protected by the Fair Labor Standards Act, also known as the FLSA. The FLSA ensures that employers are held accountable under federal law for proper payment of employees. In the case of mandated temperature checks, employees should anticipate payment for undergoing such an event before the technical start of their shift. As a required workplace action, employees should be compensated for their time.
If you are concerned that your workplace has not been properly paying you, an attorney may be able to help. Contact attorneys with Barkan Meizlish, LLP today to set up a free consultation.
From the Barkan Meizlish, LLP Archives: Letter to the Editor
Stop the medical errors, and you stop the lawsuits
With regard to the Feb. 20 article “Doctors go on the defensive with tests,” I offer the following comments that hopefully reflect the other side of the debate.
The article described a practice among some doctors who allege they order unnecessary tests as a hedge against potential medical-malpractice claims.
There is a crisis in medicine: medical errors, and errors ought to be the primary concern of the medical community, not the declining number of lawsuits against hospitals and doctors when those preventable errors occur.
Rather than asking how we can further reduce the number of lawsuits and limit accountability, which was done legislatively in the early 2000s (the number of lawsuits in Ohio has declined every year since), we should be considering how we can improve the quality of medical care in this state and reduce the staggeringly high rate of medical errors.
According to the Institute of Medicine, 98,000 people die annually because of medical errors. That’s the equivalent of two 737 airplanes crashing every day for a whole year.
Health Affairs magazine reported last year that one in three patients in a hospital is the victim of medical errors. Why aren’t we talking about these horrifying statistics and the ways to solve the problem?
Wouldn’t Ohioans be better served by working to find solutions to this rampant problem rather than trying to reduce overall accountability when those errors occur?
We also question the veracity of the self-reports where doctors claim to order unnecessary tests. The law does not require doctors to order any tests.
Instead, a doctor need only act reasonably in the care and treatment of the patient, and if it is reasonable to not order certain tests, the doctor cannot be held liable.
Second, many tests, particularly invasive tests, come with inherent risks. It is inconceivable that a caring doctor would intentionally subject a patient to such a test simply for selfish reasons.
Third, in Ohio, a doctor cannot be sued at all unless another physician in the same specialty has executed an affidavit under oath stating the treating doctor acted unreasonably. So, it is doctors who determine whether a treating doctor can be sued, not the patient or the patient’s lawyer.
Such a physician surely could determine whether a test was necessary or not. The law already has been changed many times to discourage patients from filing claims.
Additionally, if we can raise Ohio’s standard for the quality of care, the few remaining lawsuits due to medical malpractice will naturally fall. If, however, we simply reduce the ability of average citizens to seek justice through our courts, we are turning a blind eye to the real problem.
BOB DeROSE