Temperature Tests in The Workplace: Could it be Part of The New Normal?

There has been considerable speculation over the past week regarding the timetable to return to a state of normalcy. Several public health and infectious disease experts have opined on the “new normal” for the foreseeable future. While we are certainly living through uncertain times, one fact seems to be undisputed: Until an effective vaccine can be widely and safely distributed, our general way of life—especially life in the workplace—will continue to look different.

Many businesses in Kentucky and other states have been required to temporarily close their doors in light of stay-at-home orders. Even “life sustaining” businesses that are permitted to stay open during the pandemic have drastically altered the way they conduct and operate their business. When and as the economy begins to open back up, we expect employers will have to start—or at least continue—implementing new workplace procedures in order to keep their employees safe.

One such workplace procedure might be an employer-provided temperature test. Generally, an employer cannot require its employees to take a temperature test because it constitutes an overly broad medical examination under the Americans with Disabilities Act (ADA). However, during the H1N1 influenza pandemic in 2009, the Equal Employment Opportunity Commission (EEOC) addressed issues surrounding “pandemic preparedness in the workplace” as it relates to the ADA. Similarly, on March 19, 2020, the EEOC reissued and updated its previous guidance to specifically respond to the COVID-19 pandemic.

Regarding employer-required temperature tests, the EEOC’s new guidance states “[i]f 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.” The EEOC points out, however, that because many COVID-19 carriers are asymptomatic, and therefore would not have a fever, the implementation of temperature tests will not be perfectly reliable. In other words, while temperature tests may be an additional safety precaution that some employers may implement, it should not serve as a replacement for adhering to other health and safety guidelines as set forth by the Centers for Disease Control and Prevention (“CDC”).

If employers decide to start administering temperature tests, it will be very important that they implement a safe and effective procedure while doing so. For example, employers should think about who will be administering the temperature test, and what sort of protective gear he or she should be wearing. Additionally, it will be important for employers to create a safe and healthy space for employees to wait before having their temperature taken. Social distancing measures should not be compromised throughout the process of administering such tests. Moreover, even if an employee has a fever, employers should understand that it does not necessarily mean that they are COVID-19 positive. Given the shortages of COVID-19 tests, it is extremely unlikely that someone with mild symptoms such as a fever will be subsequently tested for COVID-19 by their medical professional.

It is also worth mentioning that temperature checks open the door to a host of other potential issues that include, but are not limited to, health privacy concerns and federal and state wage and hour laws. While the implementation of temperature tests, at least right now, are ultimately at the discretion of the employer, it is critical that an employer understands the potential implications—and possible consequences—of administering such tests and taking action based on test results.

The “new normal” is a disconcerting reality for many Americans. This is the case because even the top disease experts in the world do not fully understand what it will entail. However, until we develop a safe and effective vaccine, we know that—at the very least—employers should continue to monitor the health and safety guidelines issued by the CDC and consult with counsel if and when necessary. We may not know the full extent of the virus, but we do know what steps should be taken to ensure the health and safety of both employers and employees during these unprecedented times.

If you would like to read the EEOC’s full response to the COVID-19 pandemic, you can access it here: https://www.eeoc.gov/facts/pandemic_flu.html

Even after the worst of the virus is behind us, continuing to adhere to the health and safety guidelines that are issued by the CDC will be very important in order to prevent a second wave of coronavirus. Dr. Anthony Fauci, one of America’s top experts on infectious diseases, has warned the public that it is very possible for another coronavirus outbreak to take place in the fall of 2020. A recently published article that articulates the possibility of a second wave of coronavirus can be found here: https://thehill.com/changing-america/well-being/prevention-cures/491988-fauci-recovered-coronavirus-patients-will-likely

*This post is for informational purposes only and should not be a substitute for legal advice.