Businesses will face a host of logistical challenges if they decide to check workers for fevers in an effort to stop the spread of the novel coronavirus, attorneys told Bloomberg Law.
Before the Covid-19 crisis, employers could check workers’ body temperatures only in limited circumstances without violating a federal disability law. But the Equal Employment Opportunity Commission last week said employers can now do so during the pandemic, and also bar employees with elevated temperatures from entering the workplace.
Those checks are daunting for both employers and their workers, attorneys say, as companies grapple with how to get the checks up and running while keeping employees appropriately distanced from each other. Other issues include picking the right thermometers, getting health professionals to conduct the checks, processing and storing sensitive medical information, and implementing uniform policies for sending workers home. There’s also the problem of workers who have Covid-19 without fevers.
“It’s practically speaking a minefield,” said Michael Elkins, founder and partner of Florida-based MLE Law. “From an employment law perspective, it really is completely new territory for everybody.”
‘Healthy Dose’ of Common Sense
The Americans with Disabilities Act generally prohibits most medical inquiries or examinations—which would include temperature checks—in a workplace setting. The existence of a pandemic has pushed that prohibition to the side, said David Miller, an attorney with Florida-based Bryant Miller Olive.
The pandemic also is reminding employers that they have an obligation to maintain a safe and hazard-free workforce under the general duty clause of the Occupational Safety and Health Act.
If employees refuse to answer questions about whether they have Covid-19 or symptoms of the disease, the EEOC said in its guidance that they can be barred from the workplace—though the agency advised employers to ask workers why they’re refusing to answer.
A “healthy dose” of common sense is needed when considering workplace temperature checks, Rasco Klock partner Blaine Bortnick said.
“Employers should consider temperature checks as part of a back-to-work plan, but they should apply it across the board and remember that many people who contract COVID-19 do not have a fever or are otherwise asymptomatic,” he said.
Emily Pidot, a partner with Paul Hastings in New York, said it’s best to have a uniform policy of checking every employee’s temperature, with a clear threshold for sending workers home if necessary. Walmart has set its temperature threshold at 100 degrees Fahrenheit. If an employee’s temperature is above 100, the employee will be sent home or advised to seek medical treatment.
“But if an employer’s going to be selective about it, they should really base that decision on a reasonable belief of objective evidence,” such as a worker presenting a hacking cough in the workplace, she said.
The EEOC also advised employers to store private medical information, like a recorded body temperature, in a file separate from an employee’s standard personnel file and treat it as confidential information.
The prospect of getting an operation up and running is daunting for employers, some management attorneys said, especially when an elevated body temperature might not even be an indication of Covid-19.
“It’s certainly not foolproof, by any means,” said Jeremy Mittman, a Los Angeles-based partner with Mitchell Silberberg & Knupp.
One of Mittman’s clients also ran into trouble trying to obtain thermometers. The corporate client purchased temperature guns, but none of the instructions came in English, rendering them useless.
Kate Gold, a partner with Proskauer Rose in Los Angeles, said thermometers aren’t as readily available as they were several months ago, and that a health professional should be conducting the checks, if possible.
“From my experience with how employers are feeling about all of this right now, if they could contract out for a health professional to do this, I think they would,” she said. “I think the question is if the workers are available.”
Walmart’s health checks will be administered by workers who have received training on handling sensitive medical information, a company spokesperson said. The retail and warehouse workers will “wait in an orderly fashion prior to the screening and temp check. They will be asked to maintain ‘social distancing’ guidelines as they wait,” the spokesperson said.
They’ll also be paid for the time they’re waiting in line to get checked, the company confirmed.
Workers are another concern. Adam Herzog, a partner with Katz, Marshall & Banks who represents employees, said he hasn’t heard from workers expressing concerns about temperature checks—or potentially discriminatory practices on the part of employers while checking temperatures—but that doesn’t mean it won’t happen.
While some workers might be hesitant to have an employer take their body temperature, Herzog said it’s likely not something that they can successfully challenge, given the language from the Centers for Disease Control and Prevention cited in the EEOC’s guidance.
But if a worker is turned away from a job site, he or she should ask about the exact parameters of the policy, Herzog said.
“That would be the main thing that the person would want to ask; what the policy was, and what the policy is for returning to work,” he said.