19 March 2020

EEOC Okays Temperature Checks During COVID-19 Pandemic

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

On March 18, 2020, the EEOC updated previous guidance to announce that employers can measure employees’ and applicants’ body temperatures during the COVID-19 pandemic. The EEOC also gave the green light to asking employees if they are experiencing symptoms of COVID-19 and also screening applicants for COVID-19 symptoms. Here is a link to the guidance.

Under normal circumstances, there is no question that measuring an employee’s body temperature is a medical examination and prohibited by the Americans With Disabilities Act unless it is job-related and consistent with business necessity.

Employers should bear in mind that body temperatures are far from a perfect measure of whether an employee might have COVID-19.  Individuals with COVID-19 might not have a fever, and it is still more likely than not that individuals with a fever do not have COVID-19.  Any employer planning to implement temperature checks should first develop a plan to address the following:

  • Who will conduct the checks?
  • How will the checks be performed to protect confidentiality of health information?
  • How will the checks be performed to follow CDC Guidance to protect against the spread of COVID-19?
  • How will the results of the checks be documented to maintain confidentiality of the information?
  • If employees are required to wait for a temperature check before work, how will that time be tracked to ensure compliance with the Fair Labor Standards Act?
  • What if an employee refuses?
  • What is the protocol for an elevated temperature?
  • Whether there are obligations to provide notice to a union and/or bargain over the practice?