[US] Is It Legal To Have Employee Temperature Checks At Work?

28 MAY 2020

Essential workers like medical professionals and supermarket staff are continuing to attend their workplaces on a daily basis. Businesses have had to put safety precautions in place from reorganising layouts to ensure social distancing to making mask-wearing compulsory. And some have taken a more controversial step by requiring mandatory employee temperature checks. Best Life put a series of questions to experts from legal and medical fields to find out more.

Is it legal for my workplace to take my temperature?

"Normally, employers would not be able to take employee temperatures as it would violate the Americans with Disabilities Act (ADA)," Brett Holubeck, JD - a labour and employment law attorney at Alaniz Law & Associates in Houston - said. (Link via original reporting)

Workplace medical testing cannot generally be a requirement, because screening for certain symptoms would inevitably result in discrimination against individuals with a wide variety of disabilities and medical conditions. However, the unprecedented nature of the COVID-19 pandemic means the rules for what employers can and cannot make their employees submit to have changed dramatically.

"Because the [Centers for Disease Control and Prevention] and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees' body temperature," Mr Holubeck explains. (Link via original reporting)

This is true even of employees with privacy clauses in their contracts. "It is likely that there is nothing in any contract about [a pandemic], and therefore [temperature checks] will not be against the contract," attorney Justin Meyer, Esq. - a partner at Rosenthal Meyer, PLLC - explains. (Link via original reporting)

What about my privacy?

Fortunately, what your employer can do with the information it gets from temperature checks is limited. Brett Holubeck notes that your temperature (and any other medical information your boss or human resources department discovers during a screening) remains subject to ADA confidentiality requirements. This means that your employer cannot legally tell your coworkers that you have a fever or publicly name any employees diagnosed with COVID-19.

Richard Dreitzer - labour and employment law attorney at Fennemore Craig - adds that employers must take precautions to ensure that the information they are gathering remains private. "You need to protect identity and test as discreetly as possible. No lines outside the HR office," he said. (Link via original reporting)

To ensure that the testing itself will not be called into question, Mr Dreitzer cautions that employers choosing to carry out employee temperature checks "need to make sure that their organization passes the perennial tests of competence, consistency, and common sense." In layman’s terms, companies should have established protocols like using the same type of thermometer (whether of the oral or infrared variety) for all employees, pre-determining what the temperature reading high enough to send employees home and re-assessing these measures to ensure they are in line with updated guidance from the CDC.

However, these protections do not ensure that the information discovered is immediately deleted. Mr Holubeck reportedly said that - according to Occupational Safety and Health Administration Standards - an employer must keep an employee’s health records for the duration their employment, plus 30 years. (Link via original reporting)

Can I lose my job if I refuse a temperature check?

If you choose to refuse a temperature check, your employer may be able to take action against you. In the case of at-will employees - who make up the majority of American workers - termination with or without cause can happen at any time. Mr Meyer says that refusing a temperature check "could be deemed a for-cause firing for endangering the safety of the workplace."

For at-will employees, the rules regarding employment are subject to sudden change.

"The employer could make anything a condition of employment, as long as that particular condition did not violate a specific law," such as racial or gender-based discrimination, Joseph Slater, JD, PhD - a Eugene N. Balk Professor of Law and Values at The University of Toledo Law School said. "A non-unionized private-sector employer could legally make 'being a fan of the Detroit Pistons' a condition of employment," he continues. Essentially, your employer has carte blanche to require that you have your temperature taken on a daily basis for work as long as no laws are being broken in the process. (Link via original reporting)

Can my union stop mandatory temperature checks?

Even if you are a union member, your boss can go outside your contract if they deem it necessary for the safety of others.

"There's a well-known concept in labour law called 'exigent circumstances' that permits an employer to implement changes, without union agreement, in response to unforeseeable circumstances that require immediate action," David Miller

- a board-certified labour and employment law attorney with Bryant Miller Olive - said. Unforeseeable circumstances would include the COVID-19 pandemic. (Link via original reporting)

Are temperature checks effective?

Mandatory employee temperature checks may not be particularly problematic from a legal standpoint but medical experts warn that they might not be completely effective. Physician scientist William Li, MD - author of Eat to Beat Disease - said one of the major flaws in giving employee temperature checks is that asymptomatic individuals with COVID-19 can still pass the virus to others. Another issue with the practice? "Not all people may have a fever when they are infected with COVID-19," but may present with other symptoms instead, Dr Li cautions. (Link via original reporting)

Dr Li also points out that many other medical conditions - including minor infections not easily transmitted to others - can cause fevers. So employers may end up sending home generally healthy individuals who are in no danger of spreading disease to those around them.

But temperature checks may be the best option employers have right now.

"The only truly effective gauge for determining whether an employee has COVID-19 is to administer an antigen or antibody test," Cara Pensabene, MD - medical director of EHE Health - said. Unfortunately, it can take a few days to receive the results of these tests, so there is the potential that sick employees could continue spreading the virus before their results come in. (Link via original reporting)

While there is no magic bullet to keep everyone safe, Dr Li said that many of the precautions already in place can help stop the spread, even without temperature checks. Such precautions include spacing out desks in offices, encouraging hand washing, and deep cleaning shared spaces. Employers should also be promoting safe off-the-clock behaviour, he said. (Link via original reporting)

"Making sure your employees are practising safety at home with masks, distancing, and other recommended manoeuvres outside of work is an important part of ensuring health in the workplace," Dr Li explains. (Link via original reporting)

Source: Best Life