Coronavirus in Oklahoma: During pandemic, taking workers' temperatures may be OK
With the concerns around COVID-19, can employers take employee temperatures as they arrive for work and send them home if they have a fever?
Generally no, because Equal Employment Opportunity Commission guidance provides that taking an employee’s temperature is a medical exam under the Americans with Disabilities Act, and such actions can only be taken in regard to a current employee if the medical exam is job related and consistent with business necessity.
Taking an employee’s temperature may be considered job-related and consistent with business necessity if specific facts give the employer a reasonable belief that the employee may pose a direct threat to employees’ or others’ safety. The EEOC has indicated that in the event of certain pandemics, taking employees’ temperatures on a more generalized basis may be appropriate.
The World Health Organization recently declared COVID-19 to be a pandemic. Does this mean all employers are now free to take all employees' temperatures?
Not all pandemics will trigger the ability for all employers to take all employees’ temperatures. The EEOC’s guidance on pandemic preparedness, which the EEOC has specifically indicated applies to COVID-19, states, "If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the Centers for Disease Control and Prevention (CDC), then employers may measure employees’ body temperature."
Based on the EEOC guidance, in areas where the state or local health authority has declared widespread transmission of COVID-19 through community transmission, employers may take employee temperatures as they arrive for work. As is always the case, employers can send employees home if they show any symptoms of active illness, including a fever. A more difficult legal question is whether employers in other areas, where active community spread has not yet been identified, can also implement this measure without violating the EEOC’s guidance.
Given the widespread measures that the federal, state and local governments are taking to prevent the spread of COVID-19, and the information from the CDC that older adults and people who have severe underlying chronic medical conditions (like heart or lung diseases or diabetes) seem to be at higher risk for developing more serious complications from COVID-19, there is a good argument that such measures would be allowable at this time.
However, because current information released by the CDC indicates that for most individuals, COVID-19 is not more severe than the seasonal flu, employers who are in an area where community spread of the virus has not yet been identified should be cautious and consult their employment counsel before taking such measures.
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If an employer decides not to take employees’ temperatures, what can they do to try to avoid the spread of COVID-19 in their workplace?
Employers should carefully monitor announcements by their state and local public health authorities and take precautions as recommended by those authorities. In addition to emphasizing hygiene and performing extra cleaning, employers should encourage employees showing symptoms of illness (including fever, cough or difficulty breathing) not to come to work, and should send those employees home if they do come to work.
Employees should be required to report if they have come into contact with someone who has been diagnosed with COVID-19, and employers should send those individuals home, as well. Currently, local health authorities in many areas are limited in the amount of COVID-19 testing that can be done and therefore, employers should be aware that many individuals will not be able to get COVID-19 testing, even if they are showing symptoms of the virus.
As such, employers should also carefully evaluate situations in which an employee has been exposed to an individual who is showing symptoms of COVID-19, even if that individual has not been tested. Employers will need to decide the level of risk based on information available to employer, not fears or stereotypes, to determine whether that employee needs to be sent home.
Employers can also work with their employees to increase their ability to practice social distancing. Officials indicate that the biggest risk of exposure is for those who have sustained contact (within six feet) of an individual showing active signs of the virus. For employees who can perform their work remotely, employers should consider allowing telecommuting to help limit the number of employees coming to the work location.
For employees who cannot work remotely, employers should look at modifying standard operating practices to allow the employee to have more distance between the employee and others as they perform their duties.
What other laws or regulations should employers be mindful of when developing a strategy to protect their business, employees and customers from the spread of this virus?
Employers have a duty of care which requires that they provide a healthy and safe workplace for all employees. This is established by the Occupational Safety and Health Act. Employers should follow CDC guidelines for workplaces to ensure they are meeting their duties under OSHA.
Currently, for most employers, the guidelines indicate that employers should focus on helping employees practice good hygiene, implement extra cleaning, practice social distancing (experts recommend six feet of space when possible), using technology for meetings to avoid unnecessary group gatherings and/or travel, and limiting food sharing. There is special guidance for health care employers. However, as the virus spreads and more facts become known, this CDC guidance may change and employers should check back to the CDC website regarding COVID-19 frequently. The website is https://www.cdc.gov/coronavirus/2019-ncov/index.html.
Employers must also be careful not to stereotype or discriminate against employees because of their race, color, national origin or other protected classifications. Employers must be careful not to make determinations of risk based on a person’s race or country of origin.
Employers also need to be careful to maintain confidentiality of medical information they learn about an employee during any screening done for COVID-19 and/or when an employee reports exposure or symptoms of the illness. Access to this information should be limited to those with a demonstrated need to know the information.
What sort of documentation should employers keep if they decide to test employee temperatures and how does confidentiality come into play in this regard?
While employers are not required to keep documentation of employee temperatures, it would be wise to keep documentation of the actual temperature readings for any employees who are sent home due to a high temperature.
Employers should remember that the ADA requires them to take special precautions in regard to information regarding the medical condition or history of an applicant or employee. Such information must be collected on separate forms, kept in separate medical files, and be treated as a “confidential medical record.”
Paula Burkes, Business writer