Due to the severity of the COVID-19 outbreak, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance for employers considering taking the temperature of workers re-entering the workplace and if this could lawfully be done. The EEOC issued guidelines on temperature taking as being permissible back in 2009 as a result of the H1N1 outbreak. More recently, the EEOC re-issued its guidance confirming that the COVID-19 pandemic permits employers to measure employees’ temperatures before allowing them to enter the workplace.
Per the EEOC guidelines, such screening should be implemented on a non-discriminatory basis and all information obtained should be treated as highly confidential medical information under the Americans with Disabilities Act (ADA). Specifically, the identity of workers exhibiting a fever or other COVID-19 symptoms should only be shared with members of company management with a true “need to know”. Additionally, employers should understand that screening employees’ temperatures is just one of the screening techniques that may be utilized and that it will not completely mitigate the risk of contagion since many people with COVID-19 may not have a fever People without a fever could also be contagious without experiencing any symptoms. Given the increased focus on taking temperatures, it is important for employers to ensure that when they take employees’ temperatures they do so safely. As of this date, the EEOC, CDC or the Occupational Safety and Health Administration (OSHA) have yet to issue guidelines or requirements specific to temperature checks. Since some employers are already required by state and local orders to institute temperature checks, below are general best practices in place by many and specific compliance approaches that employers may consider if they implement temperature checks when workers come back to the office:
Employers will need to individually consider a host of procedures when evaluating “return to work” measures to protect employees. The possible taking of temperatures may be one of many possibilities to consider. It is expected that as the country begins to “open” and employees return to work federal agencies will issue further guidance on temperature taking. Employers should check with their legal and other safety professionals before adopting any procedures.