It was reported recently in the news that Amazon is now routinely taking the temperature of workers at its many distribution centers in an effort to keep the Coronavirus at bay. If you are operating an essential business and considering doing the same thing, what does the law say you can and can’t do?
“Employers may be acting lawfully if they decide to implement temperature testing of their employees as part of their Coronavirus screening and prevention efforts,” explains attorney Ronald Sarian of the law firm of Constangy Brooks Smith & Prophete. “After all, an infected employee may present a hazard not only to himself or herself, but also to co-workers and even customers. There are, however, many legal and practical issues to consider.”
Before you proceed to follow Amazon’s example, you must be aware that all federal labor and discrimination laws remain in full force, along with all relevant state and local workplace laws, and you need to make sure to steer clear of violating any of them.
Among the federal laws you need to keep in mind are the Fair Labor Standards Act, the Family and Medical Leave Act (now amended by the Families First Act), the Health Insurance Portability and Accountability Act (HIPAA), and the Genetic Information Nondiscrimination Act (GINA).
The Americans with Disabilities Act (ADA) generally considers the taking of an employee’s temperature to be a “medical examination,” which it defines as any “procedure or test that seeks information about an individual’s physical or mental impairments or health.” Medical examinations of employees are allowed only if the employee poses a “direct threat” to their or others’ health or safety.
The Equal Employment Opportunity Commission (EEOC) has taken the position that during a pandemic, employers can rely on the latest CDC and state or local public health assessments to objectively determine whether the pandemic rises to the level of a direct threat to the safety of the individual or others.
“Although assessments might vary depending on geography or other factors, generally if an employer relies on an official assessment to make the determination that a direct threat exists, it may go ahead and test its employees,” Sarian says, pointing out that on March 19 the EEOC declared that it had determined the Coronavirus to be just such a direct threat.
In its statement, the commission confirmed that “employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19” and “may measure employees’ body temperature.” Keep in mind that EEOC’s “direct threat” finding applies only to COVID-19 and will not last past the pandemic as defined by the government.
Sarian warns employers who take their employees’ temperatures to be clear that the temperature test is being used solely to determine whether the employee may have a symptom of COVID-19, as opposed to determining whether the employee has some other medical impairment or disability.
He recommends that employers choose infrared digital thermometers rather than oral thermometers, which are more invasive. “Employers should exercise caution because an employee can have a fever for many reasons other than COVID-19. Conversely, an infected employee may be asymptomatic and not exhibit a fever at all but still be contagious.”
Because of these factors, Sarian says temperature testing should be followed up by appropriate medical questioning. “Although the EEOC’s current guidance allows employers to do this, the better practice would be to refer the employee to a healthcare provider for follow-up.”
Of course, thermometers are in short supply these days, along with toilet paper and hand sanitizer, but if you can locate one and want to test employees, the obvious practical question is, what temperature should you be looking for? At present, the Centers for Disease Control and Prevention (CDC) has chosen to define a “fever” as 100.4°F/38°C or higher.
If you discover an employee’s temperature is elevated to that degree, it is vital not to act in a way that could make you liable for disability discrimination, which still is possible in these situations, Sarian points out. You can’t terminate or take other adverse action against employees exposed to Coronavirus, much less than simply have fevers.
In these circumstances he suggests that you send the employee home and/or call a healthcare provider for further evaluation. The worker should receive paid leave if possible, and be permitted to return to work after recovering.
An employer can be found in violation of the ADA if the temperature test or other kind of screening results in the disclosure of other personal medical information, such as immunodeficiency status. You also can violate the law by disclosing an employee’s personal medical information to anyone without a legitimate, job-related reason to know it.
“Under the ADA, employers are liable not only for discrimination against individuals who actually have disabilities, but also for discrimination against individuals who are ‘regarded as’ having disabilities, even if they are not actually disabled,” Sarian adds.
Employers also must make sure that they comply with applicable state or local laws against disability discrimination. If the employer’s Coronavirus screening somehow results in disclosure that an employee is pregnant, discriminating against the employee would violate the Pregnancy Discrimination Act and possibly other state or local laws.
From a wage and hour law standpoint, it is important to note that the waiting time for temperature testing may well be compensable. That’s not all; under OSHA’s rules, if an employee test creates a medical record, the employer must retain it for the duration of the employee’s employment, plus 30 years.
The general duty clause in the Occupational Safety and Health Act requires employers to provide workers with a place of employment free from recognized hazards that could cause death or serious physical harm. “This alone might allow an employer to question, and possibly test in some manner, an employee for a contagious virus based on reasonable suspicion.” Sarian observes.