There is no clear answer at this time whether temperature taking is a violation of an individual’s privacy. Nonetheless, if an employer feels compelled to take employees’ temperature as a condition of remaining at work, there may be defenses available that doing so during this crisis is valid in an effort to protect other workers and the general population in reliance on various government declarations of emergency. A less problematic alternative would be to request employees self-monitor their temperature on a regular basis.
Based on the current EEOC guidance summarized below, there is risk associated with ordering a medical exam due to disability law protections unless a pandemic becomes widespread in the community as assessed by local health authorities or the CDC. As of today , only Santa Clara County has been identified in California by the CDC as warranting temperature taking as a measure of COVID-19 protection.
The EEOC states:
Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever so the absence of a fever does not mean the worker is not contagious.
The Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) restrict employers’ inquiries into an employee’s medical status. The EEOC considers taking employees’ temperatures to be a “medical examination” under the ADA. The ADA and FEHA prohibit employers from requiring medical examinations unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.
Taking employees’ temperatures may be prohibited if is not job-related and consistent with business necessity. The analysis into whether taking a temperature is job-related and consistent with business necessity is fact-specific and may vary among employers and circumstances. The EEOC takes the position that during a pandemic, employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” Such an assessment by the CDC or local authorities as to the severity of COVID-19 may provide needed objective evidence for justifying a medical examination. If COVID-19 becomes widespread in the community, as determined by the CDC, or state or local health authorities, then employers may consider taking an employee’s temperature at work.
However, employers must consider the effectiveness of the temperature check, as an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, and as fever may result from another condition, so temperature checks may not be the most effective method for protecting its workforce. Employers considering taking temperatures must also account for the safety and training of those conducting the testing, where the testing will be conducted, the privacy concerns of employees sent home, and compensation to employees for time spent waiting to be tested. From Atkinson, Andelson, Loya, Ruud & Romo: Atkin’s Answers.