What If an Employee Refuses to Take Co-Workers’ Temperatures?

Allen Smith, J.D. By Allen Smith, J.D. April 9, 2020
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infrared thermometer

​Some employees are refusing to take the temperatures of colleagues at worksites during the coronavirus pandemic. What can employers do?

"We recommend against the termination of employees who refuse to conduct temperature checks because there may be non-COVID-19 reasons for the refusal, which could give rise to discrimination claims," said Joseph Deng, an attorney with Baker McKenzie in Los Angeles.

For example, an employee may have a disability covered by the Americans with Disabilities Act (ADA) that results in him or her being immunosuppressed and at a higher risk. Or a worker may have a heightened risk because he or she is older and might sue under the Age Discrimination in Employment Act if he or she is fired.

An employee asked to take the temperature of his or her co-workers also may refuse to do so on the basis that he or she is not a trained medical professional, Deng noted.  If an employee will not take others' temperatures, the employer can deny the employee admittance to the worksite, he added. Employees who refuse may still need to be paid depending on the employee's status as exempt or nonexempt and what they are asked to do—for example, remain on call.

"If a decision is made to terminate the employee, however, then it should be made clear that it is due to the employee's refusal to cooperate with temperature checks in light of the COVID-19 pandemic and the employer's obligation to provide a safe and healthy workplace," Deng said.

However, Christine Berger, an attorney in New Orleans, said that to protect itself, the employer should ask an employee if he or she is comfortable taking the temperatures of other employees. "Employees who express concern should neither be required nor persuaded to serve as the administer," she said.

Isaac Mamaysky, an attorney with Potomac Law Group in New York City, said, "Ideally, employers would have a willing volunteer who takes on the role."

With proper training, personal protective equipment, a no-touch thermometer and an understanding of confidentiality considerations, a nonmedical professional can take temperatures and help keep the workplace safe, he said.

Consider Ohio, where the state has asked every open employer to check temperatures. "It's simply not practical or realistic to expect a medical professional to be available to every employer, especially in the midst of a pandemic in which medical professionals are in such high demand," Mamaysky said.

"Of course, if a company has an onsite nurse or EMT [emergency medical technician] who can take temperatures, that's ideal," he added. "However, if that's not possible, employers can provide personal protective equipment and training so a nonmedical professional can safely take temperatures. For many employers, that's the only realistic option."


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Ask the Right Questions

Taking an employee's temperature is a medical examination typically prohibited by the ADA. However, as the current COVID-19 concerns have grown, "temperature taking has become a popular yet controversial safeguard among employers," Berger said.

Last month, the Equal Employment Opportunity Commission (EEOC) issued guidance permitting employers to take the temperatures of its employees during the pandemic. While the EEOC's guidance is clear, Berger noted that it was silent on an important issue: how to take an employee's temperature. "It is not as simple as ordering an infrared thermometer off Amazon," she said.

"Before lining up your employees to scan their foreheads, consider the safety, privacy and employee relations concerns," she cautioned.

Berger recommended considering the following questions:

  • How will an employer select an employee to administer the infrared scan?
  • How will that employee be protected from the virus?
  • How will the privacy of employees subjected to the infrared scan be protected?
  • How will this action affect employee morale?

Protective Clothing

Once an employer has identified who will administer the scan, the employer should provide the administrator with protective clothing, Berger said. Protective clothing may include gloves, masks, eyewear and a gown, she noted.

"These precautions are essential for both employer and employee protection and will appear less extreme in the event an employee's temperature reads in excess of 100 degrees," she said.

Employers should advise the administrator to read the thermometer's instructions and be available to answer any questions. Before beginning, the administrator should perform a test run on himself or herself to ensure he or she doesn't have a fever, Berger recommended.

Privacy

While logistics may dictate taking an employees' temperature upon arrival at work, privacy concerns suggest otherwise, Berger said. She explained, "Employers should avoid employees lining up and waiting for their temperature to be taken." Instead, the administrator should take an employee's temperature as privately as possible and keep the identity of any employees with fevers confidential, she said.

But in April 8 guidance, the U.S. Centers for Disease Control and Prevention (CDC) said, "Employers should measure the employee's temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility."

If workers are lined up for temperature taking, they should be at least six feet apart. Any waiting time in line is compensable, said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.

Are Temperature Checks a Good Idea?

"Temperature checks are widely used as a public screen measure at international airports and in parts of Asia," Deng said. "Temperature checks are an imperfect measure, however, and should be just one of a variety of tools that a company can use to prevent and control the spread of COVID-19 in the workplace."

He noted that other measures include asking employees and visitors if they are exhibiting any symptoms of COVID-19 (e.g., fever, coughing, shortness of breath), or if they have any other high-risk factors as described by the CDC. Such factors include spending time in close quarters with a person with COVID-19, or having traveled to a high-risk area, as defined by the CDC, in the past 14 days.

 

Provide input as the DOL develops further guidance on the FFCRA. Participate online at https://ffcra.ideascale.com through April 10.

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