What is the best way to implement an employee temperature-taking policy? Should it be required of everyone or should it be used only for employees who are returning to work after being sick, or other times? What type of thermometer is best? When, where and how should the temperature be taken? What are the actions an employer should take based on the resultant number?
The EEOC released COVID 19-related guidance, which directly addresses the topic of taking employee temperatures at Questions A.3, B.1., and B.2. Specifically it provides that “employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.” It also addresses employer obligations to maintain confidentiality if it does so. We recommend reviewing this guidance as a part of any effort to take employee temperatures. We also note that the CDC has issued guidance that references integration of temperature monitoring under certain circumstances, which can be viewed at Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission and is also a helpful resource.
From an employment law standpoint, it does appears that employers do have limited flexibility to take the temperature of employees (although as noted above, the EEOC authorizes such medical examination at the present time), but please note that the federal Americans with Disabilities Act (ADA) imposes a duty of confidentiality upon employers and this is unchanged in view of the current pandemic. If an employer proceeds with taking the temperature of its personnel, it must do so in a confidential way and ensure that any documentation (including as to the results, which are similarly confidential) is specific to each employee and maintained properly in a separate medical file in accordance with ADA guidelines.
While we are not aware of specific guidance as to “where and when” employee temperatures should be taken, if the employer proceeds with this undertaking, presumably the employer would seek to take employee temperatures at the outset of any shift and in an isolated area so that no employees are permitted to enter common areas and/or perform work until such time as there is confirmation that they do not have a fever. The employer would do well to avoid making assumptions that an employee with a fever has COVID-19 (although certainly any such employee should be sent home. See the CDC’s guidance for employer instructions as to sick employees at Plan, Prepare and Respond to Coronavirus Disease 2019. The employer must also ensure that if it proceeds with taking employee temperatures, it does so in a manner that is not unlawfully discriminatory or retaliatory. The employer cannot and should not seek only to test employees who are older, or have known or perceived disabilities or are otherwise in a protected class. This can expose the employer to additional claims.
Given the recent outbreak of COVID-19 and the concern of contraction through close human-to-human contact, employers should carefully consider the propriety of proceeding with having one or more employees take the temperature of co-workers, particularly if using an oral or ear-based thermometer. If, however, the employer seeks to utilize an infrared or similar touchless thermometer, which presumably minimizes human-to-human contact, this may lessen the risk associated with virus transmission or other contamination. If the employer proceeds it should ensure a uniform and consistent application of this policy, communicated in advance to personnel. Those employees charged with taking temperatures should receive appropriate and adequate training, including the use and care of the requisite equipment (thermometer) as well as their obligation to maintain appropriate confidentiality of test results. They should also be provided with the requisite personal protective equipment (PPE) – along with instruction as to their proper donning, doffing and disposal -- to ensure they are not unnecessarily exposed to a heightened risk of virus transmission while undertaking such examinations. The employer may wish to consider having employees take their own temperatures, or have a trained healthcare worker do so, as an alternative. We also recommend contacting your insurance carrier(s) for further information before undertaking any permissible medical examination, i.e., taking employee temperatures, in your workplace.
While employment law issues are relevant here and are referenced above, to be sure, what constitutes the correct method through which to take another person’s temperature, or how to do it in the safest manner, are not matters controlled by federal or state employment laws. We recommend that employers contact their local public health department and/or the local office of the federal Occupational Safety and Health Administration for specific guidance on how the employer may implement a safe and accurate method of doing so.