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Taking Employee Temperatures

The Equal Employment Opportunity Commission (EEOC) gave employers the green light to take employees' temperatures to try and ward off the spread of the coronavirus in guidance updated March 18. But will taking temperatures really work?

"Generally, measuring an employee's body temperature is a medical examination," the EEOC stated. The Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.

Because the Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of COVID-19, the respiratory illness caused by the coronavirus, and have issued related precautions, "employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever," the agency stated. And some people with a fever do not have COVID-19.

In a National Employment Law Institute (NELI) webcast on March 12, David Fram, NELI's director of ADA services in Golden, Colo., noted that if influenza is widespread in a community, temperature taking might be job-related and consistent with business necessity and therefore allowed.

But, he said, "be super careful about taking temperatures, in part because what does it really tell you? Plenty have contagion who do not have a [high] temperature."

Jeff Nowak, an attorney with Littler in Chicago, added that if employers want to take workers' temperatures, they should pay employees sent home for high temperatures to limit any legal risk, if they can afford to do so.

Employers also should consider what they'd do if employees refuse to have their temperatures taken. Would employers send these workers home without pay?

The temperature reading should be kept confidential, Nowak said, and the person administering the temperature check should be trained on the procedure. He expressed skepticism that a lawsuit would result from taking workers' temperatures.

"If it saves one life, it's worth it," he said.

But ensure that there is social distancing and keep people at least six feet apart when they are standing in line to have their temperatures measured. Bear in mind that taking temperatures may not be nearly as effective at preventing the spread of the coronavirus as sheltering in place, where possible.

Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md., cautioned employers against using oral thermometers, which are more invasive than infrared digital thermometers.

Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said there may be an obligation to pay employees for time spent waiting to have their temperatures checked.

By Allen Smith, J.D.April 30, 2020https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/eeoc-coronavirus-temperature.aspx

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