Published in NEHRA News (5/21/2020)
In a guidance dated March 18, 2020, the Equal Employment Opportunity Commission (EEOC) made it clear that employers are entitled to monitor employees’ temperatures during the pandemic in order minimize the spread of COVID-19.
The Americans with Disabilities Act prohibits medical examinations unless they are job-related and consistent with business necessity, and taking an employee’s body temperature is regarded as a medical examination. Given recommendations by the Centers for Disease Control and Prevention, the EEOC amended its previous guidance that prohibiting temperature taking to allow it in these circumstances. There are, however, a number of issues associated with temperature taking that which employers should consider.
Temperatures are Not Dispositive
As more is learned about the virus it has become clear that individuals may have a normal temperature yet still test positive for COVID-19. Similarly, not everyone with a temperature may have the corona virus. As a result, an employee’s temperature is only one factor to be considered in assessing risk. Other measures, such as screening for symptoms and risk, may be more effective.
Use the Least Invasive Method
Most authorities recommend against oral thermometers and suggest utilizing no touch or “little touch” methods of taking temperatures.
Deciding Who Does the Screening
Employers who do not employ an occupational nurse should assign one person to do the screening at the commencement of a shift. That person should wear protective clothing, be screened in advance to make sure he or she is not ill, and should require that employees maintain social distancing while waiting for the test to be administered.
Wage and Hour Issues
Employees should be considered to be “on the clock” while waiting for and being administered the test. Employees sent home due to symptoms should also be paid for the time out of work, if possible. But what if an employee refuses to be tested? The best approach there is probably to send the employee home without pay.
Employers should be mindful of confidentiality at all times. The person assigned to do the screening and record results should be admonished not to share them. Records of screening results should be maintained in confidential medical files and not in employees’ regular personnel records. The results of screenings should not be shared with co-workers.
Although taking an employee’s temperature is permissible and may be an appropriate to tool to guard against the spread of contagions among employees, it should be done carefully, privately, and with an understanding that it will not necessarily provide all the answers an employer needs.
Charla Stevens is a director at McLane Middleton and Chair of the firm’s Employment Law Practice Group. She can be reached at (603) 628-1363 or [email protected].