Employers need to apply a measured approach to the new coronavirus. Some employers are considering measuring the temperatures of their employees before they report to work, since a fever may be a symptom of the coronavirus.
The Centers for Disease Control and Prevention defines a fever as 100.4°F/38°C or higher.
The following is a checklist of some of the more salient issues employers need to consider in determining whether to temperature test their employees.
Is a Temperature Test a Medical Examination Under the ADA?
The Americans with Disabilities Act does not define “medical examination.” However, the Equal Employment Opportunity Commission defines “medical examination” as a “procedure or test that seeks information about an individual’s physical or mental impairments or health.”
In prior guidance, the EEOC took the position that a temperature test likely is a medical examination under the ADA; however, in the event of a pandemic, such a medical evaluation may be justified by business necessity. There is scant case law on the issue.
An employer can minimize, not eliminate, the ADA risk by making clear the temperature test is to determine whether someone has symptoms, not whether he or she has an impairment or medical condition. An employer also can minimize, not eliminate, this risk if it uses a non-invasive means to measure temperatures.
Visualize a line of individuals waiting to have their temperatures measured. If an employee has a fever, the employee presumably will be sent home. Even if nothing is said, the fact is, some employees will see that worker be denied access.
This should not violate the Health Insurance Portability and Accountability Act, but it is possible it could result in a privacy claim under the ADA or under the common law (public disclosure of a private fact). The fact that having a fever does not mean an individual has COVID-19 or any other disability as defined by the ADA (or even more broadly defined under some state laws) may be helpful but may not be determinative in whether a claim is brought and/or successful.
If union employees are subject to the requirement, employers need to ask whether the employer can implement unilaterally. The answer is less clear than it may seem.
The collective bargaining agreement hopefully has a robust management rights’ clause. However, there are National Labor Relations Board and arbitration cases that stand for the proposition that safety rules are not necessarily the same as work rules so that a management rights clause that covers work rules does not necessarily cover safety requirements.
Regardless of contractual language, employers are well advised to consult with unions first (without conceding a duty to bargain). Because temperature testing may benefit the majority of union workers, unions may agree to the testing (or at least agree not to challenge such testing).
If a union does not agree to temperature testing (or not to challenge such testing), then unilateral implementation may result in a claim under the National Labor Relations Act and/or the collective bargaining agreement.
What About the NLRA?
Reminder: The NLRA applies to union and non-union employees alike. The definition of employees under the NLRA excludes supervisors, managers, and certain other employees as defined by the NLRA.
Let’s assume a group of employees refuse to submit to such testing, a real possibility that needs to be considered, particularly in light of the privacy concerns. In such circumstances, the employees most likely are engaging in protected concerted activity under the NLRA.
The employer does not have to pay the employees when they refuse to work. However, the employer generally cannot discipline or discharge them, either.
The practical effect could be material business interruption, a business continuity risk employers should consider.
Wage and Hour Considerations
Let’s imagine again that long line. Employees could be required to wait a considerable amount of time before being able to enter the workplace. It is possible this waiting time may be compensable under the FLSA and/or state laws, such as in California, which may be even more strict in interpreting when an employee is “waiting to be engaged” versus “engaged to wait,” the legal issue which would be litigated in these cases.
Would a plaintiff’s lawyer really bring such a claim where the underlying facts arose out of a public health crisis? Yes.
Employers may be able to minimize, not eliminate, this risk by asking each employee to keep track of their waiting time and requiring them to add that to their working time.
Other Practical Implementation Issues
Employers need to be clear that the fact an individual does not have a temperature does not mean the or she does not have Covid‑19 or any other medical condition. We do not want an employee subject to the temperature test to conclude that he or she has been given a clean bill of health.
Along the same lines, we do not want any employee to believe that temperature testing ensures there are no communicable diseases in the workplace. It is a precaution; it does not equal prevention.
Any claims by employees in this area probably would be covered by workers’ compensation, although hopefully humans are weighing human considerations equally. Workers’ compensation would not apply to testing of non-employees, such as independent contractors, visitors, etc. And, if you test employees for the well being of the workplace, how do you avoid testing non-employees who may interact with others in the workplace?
Further, the CDC generally recommends that an individual who had a fever not return to work until the fever is gone for at least 24 hours without fever-reducing medicines. In the event the employee has been diagnosed with Covid-19, the waiting period likely would be longer, for example, three days after the cessation of symptons without medication.
Think of the logistics of how this would work before implementing temperature testing. It is but one of many issues that may make temperature testing too hot to handle in most industries (one possible exception: health care).
At least not now. Now, wash your hands!
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.