Hunton Employment & Labor Perspectives

The CDC has recommended temperature checks for workers in some counties.  Governors are beginning to make the same recommendation.  This step already is in place for many healthcare workers.  Now, employers in other industries are considering whether they should conduct temperature checks on employees who are reporting to work and send them home to avoid possible spread of the virus on the employer’s premises.

The ADA prohibits employers from conducting medical examinations unless the inquiry is job related and consistent with business necessity, or the employer has a reasonable belief that the employee poses a direct threat to the health or safety of themselves or others that cannot otherwise be eliminated or reduced by reasonable accommodation.  The EEOC’s position is that a temperature checks generally will be considered to be ADA medical examinations; but, that such checks may lawfully be done during a pandemic.  But, employers should be cognizant that some people with COVID-19 do not have a fever.

Neither the EEOC nor the CDC provide any guidance as to how the temperature check process should work so as to stay within the safe harbor the EEOC has appeared to create by its pandemic guidance.  Thus, employers should be mindful of associated legal issues before implementing this step.  First, because the temperature check is considered by the EEOC to be a medical examination, employers should have someone with medical training to take vital symptoms administer the temperature.  If someone with medical training is not available, employees should self-administer the temperature and display the reading to the facilitator.  The person taking the temperatures or facilitating the testing will be exposed to every (potentially infected) worker at the site. Thus, that person must wear appropriate personal protective equipment, which should include respiratory protection provided in full compliance with an OSHA respiratory protection program.  This person also should wear other PPE, such as gloves and a frock, and must receive OSHA compliant PPE training on all PPE that will be worn.

The temperature should be taken in private and the results should be maintained confidentially.  Employers also should be mindful of Fair Labor Standards Act (FLSA) working time considerations regarding the time spent in this screening.