As we move through the COVID-19 pandemic, employers continue to balance the risks of operating in these trying times. One question many employers have is whether they can monitor employees’ health, including requiring employees to submit to a temperature check before being allowed to work.

Under usual circumstances, taking an employee’s temperature would be a prohibited “medical examination” under the Americans with Disabilities Act (“ADA”) unless the exam was job-related and consistent with business necessity, meaning that the employee’s ability to perform essential functions of the job will be impaired by a medical condition or the employee will pose a direct threat due to a medical condition. In “normal” times, these are very high burdens for the employer to meet.

In light of the COVID-19 situation and the interest in limiting community spread of the disease, however, the Equal Employment Opportunity Commission (“EEOC”) has eased the usual restrictions on medical examinations and stated that employers may take precautions to prevent the spread of the virus, such as measuring employees’ body temperatures before allowing them into the workplace.

It is important for employers who are considering taking employees’ temperatures to proceed with caution and consider the following before implementing such action:

• Many individuals who have been diagnosed with coronavirus do not have an elevated temperature. Thus, taking employees’ temperatures may not accurately identify employees who have or may have the virus.
• Hiring a third party, such as a nurse, to perform the testing may help increase accuracy of the testing and alleviate employees’ concerns about confidentiality and disclosure of other medical information to those who can make employment-related decisions.
• The results of the testing is medical information about the employee and the employer must comply with ADA confidentiality requirements with regard to that information.
• Employers who elect to take employees’ temperatures should do so on a nondiscriminatory basis – this may include an all-or-none approach or limiting testing only to those employees who are required to work in closer quarters or come in contact with clients or customers.
• Employers should set a temperature threshold over which employees will not be allowed to enter the workplace. Based on other guidance from the Centers For Disease Control (“CDC”) a temperature over 100.4 degrees Fahrenheit is considered a “fever” and therefore may be a reasonable standard for decision-making.
  Employers should create a policy and practice for such testing, including the consequences for employees who have a high temperature, and clearly communicate that policy to employees before the testing begins.

Regardless of whether employers choose to test employees’ temperatures, all employers should require employees to follow social distancing guidelines, engage in regular handwashing, and disinfect commonly touched surfaces.

Employers should continue to monitor guidance from state and local governments to ensure they stay in compliance with any changing recommendations or regulations. Attorneys at GCPC will continue to monitor recommendations and legislation. For additional guidance, contact the employment law experts at General Counsel, P.C. today at mgreen@gcpc.com or amuhlendorf@gcpc.com.