Jonathan Segal

Infrared forehead thermometers—so-called thermometer guns—are "notoriously unreliable," according to medical experts quoted in an article in The New York Times, but that hasn't kept the devices from flying off store shelves as coronavirus cases pop up around the world. Some employers are using them to take workers' temperatures, then sending the workers home if they have a fever. [...]

Is it legal for employers to take workers' temperatures? If the Centers for Disease Control and Prevention (CDC) or a state or local health authority proclaims a pandemic has spread in an area, then yes, it is; otherwise, it is not, according to Equal Employment Opportunity Commission (EEOC) guidance. [...]

Temperature Checks May Be Premature

The three most common indicators of COVID-19, the illness caused by the coronavirus, are elevated temperature, coughing and difficulty breathing.

"Employers are doing the right thing by considering all options potentially available to them in the event of a pandemic, including temperature testing," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City.

But, he added, "perhaps temperature testing is too soon, unless you want your long lines of employees waiting to be tested to be breaking news on CNN or social media."

Nonetheless, Segal added that "in the event of a pandemic, an employer's risk calculus will change."

As for the lines that may form of workers waiting to be temperature tested, should it come to that, Segal said there may be an obligation to pay employees for the waiting time. [...]

Illegal or Legal?

For employers that want to conduct temperature checks, Segal noted that the primary legal issue they need to consider is whether a temperature test is a medical examination under the Americans with Disabilities Act (ADA). "Unfortunately, the law is not entirely clear," he said. [...]

Although the EEOC has provided guidance on ADA requirements during pandemics, Segal said, "it is far from clear that a court would follow the EEOC's guidance. It is not clear that the current EEOC would follow this guidance. There is a dearth of case law on this issue. So the EEOC guidance is a reasonable starting point."

If there is a pandemic in an area and an employer takes workers' temperatures, it should make clear that the fact that an individual does not have an elevated temperature does not mean he or she has a clean bill of health, Segal said.

"Along the same lines, we don't want any employee to believe that temperature testing ensures that there are no communicable disease in the workplace. It is a precaution. It does not equal prevention," he said.

To read the full article, visit the SHRM website.