Employers are obligated by law to protect workers and prevent the spread of COVID-19 in the workplace. Should an employer temperature test its employees as a potential safeguard? It depends . . . and there are several legal considerations to take into account.
Some states require employers in certain industries to temperature test workers before the start of their shift. The EEOC has recommended the use of temperature tests, and the CDC has encouraged companies to institute regular health checks, including temperature screening, to mitigate the spread of COVID-19. However, many jurisdictions and industries do not require temperature checks, so for many employers, it is optional.
Where not required, employers should consider whether temperature screening has any value. Individuals with COVID-19 may not exhibit symptoms, and individuals with higher temperatures may not necessarily be infected. In addition, the additional cost and legal and business may not make sense for some employers.
Employers who do temperature test will need to set clear guidelines on what constitutes a “fever.” The CDC defines a fever as 100.4°F or higher, but some states, like Delaware, have ordered that, for certain industries, any temperature above 99.5°F renders an employee ineligible to work.
Some companies test in a private setting within the office, although many take temperatures as employees enter the workplace. If temperatures are taken as employees enter the workplace, employers must consider how to maintain adequate social distancing between workers, as well as confidentiality and privacy concerns.
Some states, including California, require notice to employees before temperature testing can occur. Temperature testing also raises recordkeeping and privacy issues. Employers should maintain employee health data, including temperature checks, separate from personnel files and limit disclosure to a “need-to-know” basis. If the workforce is covered by a collective bargaining agreement, the testing may be subject to a duty to bargain. Even if testing is not covered by a collective bargaining agreement employer should consult with the unions.
If workers stand in long testing lines the waiting time may be compensable under state or federal law. Employers should consider staggering shift starts or having multiple temperature takers to avoid delays.
Temperature testing can be a useful return-to-work safety measure; however, employers need to decide whether it makes sense for their business and determine how to implement it. If you are considering implementing temperature testing protocols in your workplace, please discuss it first with your business attorney.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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