The Equal Employment Opportunity Commission (EEOC) gave employers the green light to take employees’ temperatures to try and ward off the spread of the coronavirus in guidance updated March 18.
“Generally, measuring an employee’s body temperature is a medical examination,” the EEOC stated. The Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.
Because the Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of COVID-19, the respiratory illness caused by the coronavirus, and have issued related precautions, “employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever,” the agency stated. And some people with a fever do not have COVID-19.
Jeff Nowak, an attorney with Littler in Chicago, added that if employers want to take workers’ temperatures, they should pay employees sent home for high temperatures to limit any legal risk, if they can afford to do so.
Employers also should consider what they’d do if employees refuse to have their temperatures taken. Would employers send these workers home without pay?
The temperature reading should be kept confidential and the person administering the temperature check should be trained on the procedure, Nowak said. He expressed skepticism that a lawsuit would result from taking workers’ temperatures.
Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md., cautioned employers against using oral thermometers, which are more invasive than infrared digital thermometers.
Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said there may be an obligation to pay employees for time spent waiting to have their temperatures checked.
When an employee returns to work, under the ADA employers can require a doctor’s note certifying his or her fitness for duty, the EEOC said.
The EEOC guidance also provided that:
— An employer may take an applicant’s temperature as part of a post-offer, pre-employment medical examination.
— An employer may screen applicants for symptoms of COVID-19 after making a conditional job offer.
— An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.
— An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it. Based on current CDC guidance, the individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer, the EEOC explained.