EEOC Okays Temperature Checks During COVID-19 Pandemic
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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. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
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?