During Coronavirus Outbreak, Should Employers Check Workers’ Temperatures?

 

Allen Smith, J.D. By Allen Smith, J.D. March 3, 2020
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thermometer gun

[Editor's note:​ The Equal Employment Opportunity Commission said in recent guidance that employers may take employees' temperatures in an attempt to slow the spread of the coronavirus.]

Infrared forehead thermometers—so-called thermometer guns—are "notoriously unreliable," according to medical experts quoted in an article in The New York Times, but that hasn't kept the devices from flying off store shelves as coronavirus cases pop up around the world. Some employers are using them to take workers' temperatures, then sending the workers home if they have a fever.

"It makes no sense," said Joyce Chastain, SHRM-SCP, a consultant with The Krizner Group in Tallahassee, Fla. "It's a huge invasion and provides the employer with health information it shouldn't have."

Is it legal for employers to take workers' temperatures? If the Centers for Disease Control and Prevention (CDC) or a state or local health authority proclaims a pandemic has spread in an area, then yes, it is; otherwise, it is not, according to Equal Employment Opportunity Commission (EEOC) guidance.

Employers that are taking workers' temperatures are "using one medical characteristic to make a big assumption," Chastain said, adding that "not everyone who has a fever is contagious."

"If someone is sneezing or coughing, you can send them home," she said, but "taking someone's temperature is overreaching."

Temperature Checks May Be Premature

The three most common indicators of COVID-19, the illness caused by the coronavirus, are elevated temperature, coughing and difficulty breathing.

"Employers are doing the right thing by considering all options potentially available to them in the event of a pandemic, including temperature testing," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.

But, he added, "perhaps temperature testing is too soon, unless you want your long lines of employees waiting to be tested to be breaking news on CNN or social media."

Nonetheless, Segal added that "in the event of a pandemic, an employer's risk calculus will change."

As for the lines that may form of workers waiting to be temperature tested, should it come to that, Segal said there may be an obligation to pay employees for the waiting time.

Employee Relations Concerns

Download the PDFChristine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md., said that for now, taking employees' temperatures is "not prone to enhancing positive employee relations." She also noted that the CDC does not recommend it.

A person may not have a fever and yet be a carrier of the virus.

If employers require that temperatures be taken, she cautioned against using oral thermometers, which are more invasive than infrared digital thermometers. While infrared digital thermometers have their detractors, such as in The New York Times article, others tout the fact that they don't require touching the person whose temperature is being taken, and they are "pretty accurate, relatively inexpensive and minimize the chance of spreading illness," according to NPR.

Illegal or Legal?

For employers that want to conduct temperature checks, Segal noted that the primary legal issue they need to consider is whether a temperature test is a medical examination under the Americans with Disabilities Act (ADA). "Unfortunately, the law is not entirely clear," he said.

The Equal Employment Opportunity Commission (EEOC) defines "medical examination" as a "procedure or test that seeks information about an individual's physical or mental impairments or health."

In determining whether a procedure or test is a medical examination, the EEOC has provided guidance as to what factors may be relevant:

  • Is it administered by a health care professional or someone trained by a health care professional?
  • Are the results interpreted by a health care professional or someone trained by a health care professional?
  • Is it designed to reveal an impairment or physical or mental health?
  • Is the employer trying to determine the applicant's physical or mental health or impairments?
  • Is it invasive (for example, does it require the drawing of blood, urine or breath)?
  • Does it measure an applicant's performance of a task or the individual's physiological responses to performing the task?
  • Is it normally given in a medical setting (for example, a health care professional's office)?
  • Is medical equipment used?

In its guidance on ADA requirements during pandemics, the EEOC states that a temperature test is a medical examination within the meaning of the ADA.

If a pandemic has reached a community, as assessed by state or local health authorities or the CDC, employers may measure employees' temperatures without violating the ADA, the guidance states. "The guidance was issued by the EEOC during the H1N1 pandemic and has remained valid," said Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C.

Under the ADA, a medical examination must be job-related and consistent with business necessity to be lawful, noted David Fram, director of ADA services with the National Employment Law Institute in Golden, Colo. Job-relatedness includes concerns about a direct threat to the health and safety of workers and the public.

U.S. employers should closely monitor CDC guidance, because the EEOC has cited the CDC as a source of objective information that could establish job-relatedness and business necessity, said Susan Kline, an attorney with Faegre Drinker in Indianapolis.

Although the EEOC has provided guidance on ADA requirements during pandemics, Segal said, "it is far from clear that a court would follow the EEOC's guidance. It is not clear that the current EEOC would follow this guidance. There is a dearth of case law on this issue. So the EEOC guidance is a reasonable starting point."

If there is a pandemic in an area and an employer takes workers' temperatures, it should make clear that the fact that an individual does not have an elevated temperature does not mean he or she has a clean bill of health, Segal said.

"Along the same lines, we don't want any employee to believe that temperature testing ensures that there are no communicable disease in the workplace. It is a precaution. It does not equal prevention," he said.

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