To Test or Not to Test (Your Employees' Temperatures)? That is the Question.

You've come through the pandemic, survived the mandatory closure orders and now are reopening or have recently reopened.  However, as the Florida Marlins and St. Louis Cardinals baseball teams can attest, the virus is still out there ready to infect the cautious and the carefree, alike.

What can you do to improve the chances of avoiding a COVID-19 outbreak in your business? There are a variety of tactics, including remote work arrangements, daily employee symptom self-reporting, staggered shifts, requiring masks and gloves in your workspaces, physically rearranging those work spaces to permit social distancing between employees while working and employee testing.

Today I'm focusing on the type of testing most available to employers for screening out those who may have contracted COVID-19. This test is familiar to every bleary-eyed parent who ever desperately struggled to grasp why, oh why, a baby with a full belly and dry diaper wouldn't stop crying. Temperature taking.

In 2009, the United States Equal Employment Opportunity Commission created guidance on taking employees' temperatures during a pandemic. (No, the EEOC didn't clairvoyantly predict COVID-19, à la the "Long Island Median"; they were planning for a possible outbreak of the H1N1 influenza.)  The EEOC examined what types of medical testing and inquiries are permitted and prohibited under the Americans with Disabilities Act in a pandemic situation. It concluded that an employer couldn't take an employee's temperature unless there was a specific good reason to do so, if doing so was related to the employee's job or if the employee posed a direct threat to herself or others in the workplace.

But that was way back in 2009. The EEOC assumed that the H1N1 influenza wouldn't be much worse than a seasonal flu. And it wasn't.  Of course, none of us had met the unpleasant Mr. Coronavirus, who was still passing his time floating down the blood stream of a cave bat. The EEOC recognized that should we encounter an appreciably worse pandemic, it might change its position.

Sadly, as we know too well, things got worse. Much worse. Like, sauerkraut-flavored ice cream versus Chocolate Chip Cookie Dough, kind of worse. And in response, to paraphrase Benjamin Franklin, the EEOC demonstrated that most uncommon of traits, common sense. It did an about face, stating in March 21, 2020 guidance, that employers may measure their employees' body temperatures, without violating the ADA. 

So, at least while we remain in the grips of this particular pandemic, you may take your employees' temperatures before allowing them to report for work. (However, remember that not everyone with the virus will have a fever.) Also, you may require employees displaying or reporting any COVID-19 symptoms, including a temperature, to stay home without running afoul of the law.

However, an employer should consistently apply its temperature-taking and exclusion policies.  Inconsistencies in doing so, whether the result of an accident or a design, whether done to harass or to favor specific employees, exposes you to possible liability and could be used by disgruntled former employees and "enterprising" plaintiffs' attorneys as evidence of discrimination.

It’s comforting that, even in the throes of a once-in-a-lifetime pandemic, some things never change.

This article is intended to be used for informational purposes only. Legal advice is neither implied by the author nor should be inferred by the reader. If you have specific legal questions, you should consult with your attorney.

Jeffrey Sculley is an attorney and counselor at law focusing his practice on representing landlords; providing backroom human resource and employment support to businesses and not-for-profits; representing clients in appealing adverse trial-court and administrative decisions; and representing clients in all types of administrative, regulatory and compliance matters, before governmental agencies and administrative hearing officers and law judges.