Working Together

NOTE: The EEOC recently updated its guidance to allow more medical testing in the workplace, including clear guidance that checking employees’ temperatures is allowed in light of the current pandemic.  An update on the issue of employer temperature testing can be found in a March 22, 2020, post on this blog found here.

Most employers are making efforts to ensure that sick employees do not come to work.  Because a fever may be a symptom of infection with the Coronavirus (“COVID-19”), some employers are considering taking their employees’ temperatures before allowing them to report to work.  Is this a lawful practice? 

The short answer is “maybe,” as there has been no definitive guidance issued from either the Centers for Disease Control and Prevention (“CDC”) or the Equal Employment Opportunity Commission (“EEOC”) on this specific issue.  Now that the World Health Organization has declared COVID-19 to be a pandemic, it appears that temperature-testing employees as a condition of working may be permissible.  But employers contemplating this measure should proceed with caution and consider the following issues before temperature-testing their employees. 

ADA Considerations

The Americans with Disabilities Act (“ADA”) restricts disability-related inquiries and medical examinations by employers.  While the ADA does not define “medical examination,” the EEOC considers a “medical examination” to be a “procedure or test that seeks information about an individual’s physical or mental impairments or health.”  Generally speaking, absent unusual circumstances, requiring employees to submit to temperature checks would violate the ADA as an unauthorized and overly broad medical inquiry.  In 2009, however, the EEOC issued guidance in connection with the H1N1 influenza virus pandemic and concluded that temperature checks of employees in the event of a pandemic may be legally permissible under the ADA if it is job-related and consistent with business necessity.

Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

• An employee’s ability to perform essential job functions will be impaired by a medical condition; or
• An employee will pose a direct threat to self or others due to a medical condition.

The reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.”

Indeed, in its 2009 guidance on the H1N1 influenza pandemic, the EEOC posed and answered the question as follows:

During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?

Generally, measuring an employee’s body temperature is a medical examination.  If pandemic influenza symptoms become more severe than the seasonable flu or the H1N1 virus in the spring/ summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by the state and local health authorities or the CDC, then employers may measure employees’ body temperature.  However, employers should be aware that some people with influenza, including 2009 H1N1, do not have a fever.

See EEOC Guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

The EEOC further advised that during a pandemic, employers should rely on the latest CDC and state or local public health assessments.

Applying this guidance to the present situation is not clear-cut.  The World Health Organization (“WHO”) has officially categorized COVID -19 as a pandemic.  Because the EEOC has noted in its guidance that the WHO is among the definitive sources of information about pandemics, temperature testing may now be permissible if justified by business necessity.  Employers choosing to take their employees’ temperature should make clear that the temperature test is being used solely to determine if the employee may have a symptom of COVID-19, as opposed to determining whether the employee has some other medical impairment or disability.  Furthermore, employers opting to temperature test should use infrared digital thermometers rather than oral thermometers, which are more invasive.  Lastly, employers should recognize that a fever (a measured temperature of 100.4 F or greater) may be a symptom of COVID-19 but is not determinative.  Indeed, an employee may be infected with COVID-19 without exhibiting a fever.

Union & CBA Considerations

Any employer with a unionized workforce should review its Collective Bargaining Agreement (“CBA”) prior to conducting temperature testing of employees.  While an employer’s unilateral right to temperature test its employees may hinge on the breadth and strength of the “management rights” clause of the CBA, it may also be prudent to engage in a meaningful dialogue with union representatives about this issue, and come to an agreement on the subject so as to avoid a potential claim for an unfair labor practice.

NLRA Issues

Non-unionized employers who choose to take their employees’ temperatures before they begin work should also be mindful of potential issues arising under the National Labor Relations Act (the “NLRA”), including the protection for “concerted activity.”   For example, suppose a group of employees refused to undergo temperature testing by their employer, and were sent home on unpaid administrative leave as a result?  Under such circumstances, the employees arguably were engaging in protected concerted activity under the NLRA.  They  could not be disciplined or discriminated against based on their protected concerted activity.  This scenario drives home the importance of establishing clear rules in advance.  If the employer sends all employees who refuse to be tested home without pay – regardless of whether the refusal is purely individual or occurs as part of a group – the employer will be in a strong position to demonstrate that the discipline was not based on the employees’ protected activity, but was based instead on legitimate safety concerns.

Practical Considerations

Employers who choose to temperature test should also consider several practical considerations. For example, if an employee has a fever, how long should the employee be restricted from coming to work?  Although the CDC generally recommends that an individual be fever-free for at least 24 hours before returning to work, this analysis is complicated by the fact that just because a person does not have a fever does not mean that he or she does not have COVID-19.  Employers should be consistent in deciding when employees who exhibit symptoms of COVID-19 – whether persistent cough, difficulty breathing, or fever that has persisted for more than 48 hours – will be permitted to return to work.  (The CDC recommends that employees not be permitted to work until they have been symptom-free for at least 24 hours, but employers may wish to impose lengthier waiting periods.) 

Additionally, the logistics of temperature testing and privacy rights should also be considered.  Employers should of course avoid taking an employee’s temperature in public, or in a manner which would allow other employees to discern their co-worker’s test result.  Employers should also keep records of testing results in confidential files; they may fall within the definitions of personnel file materials or medical records under state law.  It is important to think through these practical and logistical issues before beginning a temperature testing program.

Conclusion

Employers may be acting lawfully if they decide to temperature-test their employees as a condition of working.  There are, however, many legal and practical issues to consider before implementing such a requirement.  It would be prudent for any employer who is considering a temperature-testing program to first consult with counsel and discuss these considerations in detail.