A very long time ago—last month—I wrote an Insight on the risks of temperature screening. Since then, more than 50,000 Americans have died. Stated more starkly, the U.S. is now the epicenter of this global coronairus pandemic.
President Donald Trump on April 16 announced his program for “Opening up America Again.” Employers who are going to reopen will need to consider additional precautions to minimize the spread of the virus.
Temperature screening is one such precaution. Indeed, some states already require temperature screening in some circumstances.
Because a fever is a common symptom of Covid-19, screening for fevers may help minimize workplace transmission. Such screening also may help to decrease the anxiety of employees, customers, etc. Managing anxiety is a critical component of becoming, or remaining, operational.
Steps to Minimize Risks of Temperature Taking
Of course, temperature screening is not risk free. There are steps that an employer may take to minimize some of the more salient risks that accompany the benefits of temperature screens.
1. Screening for Symptom, Not Condition. A temperature screen likely is a medical examination under the ADA. In non-binding guidance, the EEOC has taken the position that, at least during a pandemic, temperature screening is job-related and justified by business necessity
To increase the likelihood that federal, state, and local courts will follow this guidance in construing their laws, employers should make clear that the screening is not diagnostic, that is, the purpose is not to determine whether the individual has Covid‑19 or any other medical condition. The employer seeks only to determine if the individual has a symptom that may indicate Covid‑19.
2. Significance of Test. A fever does not necessarily mean an individual has Covid‑19. Conversely, the fact that someone does not have a fever does not mean that he or she does not have Covid‑19.
These realities need to be communicated. An employer does not want to give someone a false sense of security that they do not have Covid-19. Conversely, some support should be made available immediately to an individual who is told that he or she has a fever.
3. Not Practice of Medicine. If a there is a patient/health-care provider relationship, then the health-care provider has certain obligations to the individual that go beyond the taking of the temperature and communicating the results.
For this reason, it is recommended that the employer make clear that temperature screening does not create a patient/health-care provider relationship. This is true even if health-care providers perform the screen.
4. Confidentiality of Information. The notification given to or authorization signed by the individual should state to whom the results will be disclosed. Be careful not to suggest “absolutely confidentiality” because that is neither possible nor required.
The roster of test results should be labeled as confidential and secured as same. Nothing should go into the personnel files of employees.
Reasonable efforts also should be made to prevent individuals other than the person from being screened from hearing the results of the screen. There are multiple ways to configure temperature screening to increase privacy.
5. Waiting Time. There is a question whether an employer needs to pay for an employee’s waiting time to be screened (and all time thereafter under the continuous day rule.) At least under federal law, the answer to this question turns on whether the temperature screen would be integral to the employees’ primary duties. There is no “per se” rule.
Note also that state law may impose a duty to pay where the FLSA may not.
Where there is an arguable duty to pay, employers can minimize (not eliminate) the risk by keeping any waiting time as short as possible. This may mean staggered starting times, more screeners, etc. This may help an employer argue “de minimis.”
Some employers may wish to consider adding time which is more than the average waiting and other time before the employee clocks/logs/punches in. Demonstrations of good faith should matter.
Other Implementation Issues
There are a number of other implementation issues that employers should consider. They include, but are not limited to:
- You will note the discussion of screening is not limited to employees. It should extend to certain contractors, visitors, etc. who may wish to enter the workplace. This obviously is important for safety reasons. It also may be harder to argue “business necessity” in the context of the ADA if non-employees who may inflict equal risk are not screened.
- If you have a union, you will want to consult with it, even if you are confident (and don’t be too confident) that you can implement temperature screening unilaterally under your management rights’ clause. Even if you have the right to screen, you still may have a duty to negotiate with the union over some of the effects of the screening process (discussed below). Plus, the union can be an invaluable partner.
- A theme of this article is that information should be provided to employees and others screened. An authorization may be stronger but a notification may be more practical. If properly worded, the notification can create a credible argument that submitting to the screen is authorization; just make sure you have a record of each individual screened receiving the notification.
- You will need to think about what happens if an employee or other individual refuses to submit to a required screen. Consider requiring the individual to wait a specified period of time before submitting to another screen. At least try to consult with a health-care professional or infection control expert for guidance here and with regard to the next point.
- You also will need to consider how you will define and respond to a fever. Ideally, you have an infection control protocol that deals with symptoms, among other circumstances, and when an individual with a circumstance under your protocol (such as symptoms) can return to work.
Of course there are some risks in temperature screening no matter what you do. But the legal, business and human risks of not screening may be even greater.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jonathan A. Segal is a partner in the Employment Group at Duane Morris in Philadelphia. He has been advising clients on how to prepare for and respond to pandemics for 20 years, including the 2009 H1N1 flu pandemic. Segal’s practice focuses on helping clients maximize compliance, minimize legal risk, and strengthen organizational culture in areas such as pay equity, harassment and civility, wage and hour, talent acquisition, and performance management.