As the COVID-19 pandemic rages on, we’ve received the following question numerous times from employers:
“Can I take an employee’s temperature to find out if they might be infected?”
The simple answer is yes. According to our legal partners at Fisher Phillips, the Equal Employment Opportunity Commission has temporarily OK’d it:
“The EEOC confirmed that measuring employees’ body temperatures is permissible given the current circumstances. While the Americans with Disabilities Act (ADA) places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a ‘medical examination’ under the ADA, the federal agency recognizes the need for this action now because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions.”
That said, there are certain legal and financial issues to consider. In an article published on April 13th, the team at Fisher Phillips warns that “[e]mployers could face potential wage and hour claims under federal and state law if they do not compensate employees for time spent having their body temperatures checked.”
The attorneys write:
“While federal COVID-19 guidance allows employers to measure employees’ body temperatures without fear of violating disability law, that guidance does not address wage and hour compliance—and this is definitely new territory for the nation’s employers.
While federal and state courts do not appear to have considered whether employers are required to pay employees for time spent measuring body temperatures during a pandemic, U.S. Supreme Court decisions and recent state court decisions provide some guidance on how courts may rule in a wage and hour claim for employee body temperature checks. Under federal law, there are two key questions to determine whether this time is compensable:
1. Is measuring an employee’s temperature a ‘principal activity?’
2. Is the time employees spend waiting to have their temperatures taken a ‘preliminary’ or ‘postliminary activity?’”
Finally, one more note from Fisher Phillips—a temperature check is not a 100% reliable indicator of COVID-19 infection status: “as a practical matter, an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.”
So, while temperature checks are technically allowed, they’re not necessarily an ideal risk management strategy unto themselves. If you do them, you need to do them carefully, pay people for their time, and follow other safety protocols (handwashing, social distancing, etc.)
For more COVID-19 safety guidance, visit KPA’s Coronavirus Resource Center.