HR and Legal Considerations Regarding Employee Coronavirus Temperature Checks

The evolution of the COVID-19 epidemic is constantly evolving. The information in this document is based on information known at this time. As you communicate with your employees and look to make policy updates, GBS recommends that you reference real-time data from resources such as the Centers for Disease Control and Prevention (CDC) or National Institute for Allergy and Infectious Disease (NIAID). Local health departments are also releasing up-to-date information pertaining to your specific region.

During the COVID-19 pandemic local, state and federal authorities have recommended screening of employees entering the workplace. It is our hope at GBS Benefits that this overview will help you determine the right screening process for you and your company.

The CDC has published guidance in this area and outlined appropriate business response published here: CDC Business Response. In addition, they have released a detailed FAQ page regarding reduction of the spread of COVID-19 in the workplace at CDC – General Business FAQs.

Companies are responding by instituting employee screenings and questions to detect symptoms of the virus. The most common reported and tracked symptoms include a cough, shortness of breath and a fever (in excess of 100 degrees F), a sore throat, muscle aches or a decrease in the sense of smell or taste. Verbal questioning and self-assessment processes have been utilized to screen employees. The CDC has also suggested questioning employees about travel to any high-risk areas in the past 14 calendar days.

The Equal Employment Opportunity Commission (EEOC) has granted employers the right to measure an employee’s temperature. But even with the green light from the EEOC, is this the right approach?

Testing the daily body temperatures in the workplace does not come without legal risk. The act of measuring the temperature of an employee’s body temperature can be considered a medical examination. Doing so brings implications regarding other federal laws. For example, the American’s with Disabilities Act (ADA) prohibits medical examinations unless they are directly related to the business and the individual job role and duties. It is also important to note, someone carrying the COVID-19 virus may not be exhibiting physical symptoms including a fever.

Employment law attorneys have recommended several safeguards to mitigate risk when taking the temperature of employees.

1. The individual administering the test should be trained and certified on the proper procedure. For this reason, many companies are utilizing third-party providers to facilitate the testing.

2. Consider providing full pay or instituting the EPSLA for employees who are sent home following a measurement of a fever higher than 100 – 100.4 degrees F.

3. The temperature reading must be kept confidential and should not be written down or recorded and the process must comply with federal HIPAA regulations.

4. The process should be conducted in a manner that allows for social distancing and preventing close lineups of employees. Those conducting the temperature checks should be given personal protective equipment (PPE) to prevent any spread of the disease.

5. The employee should be paid for the time spent during the evaluation process.

6. An onsite nurse, practitioner or a nonmedical professional training may be utilized to safety take the temperatures.

Employers must also carefully consider the technology used in the process. Infrared digital thermometers are quick and convenient, however many of these instruments lack the quality and calibration needed for high-volume testing where accuracy is imperative. Many of these scanners have turned out to be notoriously inaccurate. Oral thermometers, while highly accurate are seen as highly invasive and present a cleaning and possible contamination issues. For these reasons, many experts are not recommending oral thermometers for onsite employee testing.

One alternative to onsite daily testing is the consideration of daily voluntary employee temperature checks. This self-administered process can be done privately and voluntarily each day in the home of every employee. Ideally this would happen offsite and prior to the employee coming in for the scheduled shift. The employer may consider offering inexpensive oral thermometers to employees who do not have one.

The EEOC has also communicated guidelines and approved the process of asking questions to employees to help prevent the spread of the virus. The details of the EEOC Webinar on these topics can be found here. Employers may ask if the individual is or has been experiencing symptoms related to COVID-19. The six commonly recognized symptoms are cough, shortness of breath, fever, body aches, sore throat and a loss of sense of smell or taste.

We’ve compiled a list of several vendors offering COVID-19 related screenings or testing services below. Please keep in mind that if using a third-party vendor for COVID-19 related testing beyond temperature or entry point screenings, including anti-body testing and COVID-19 testing, the accuracy and sensitivity of testing can significantly vary based on the equipment and testing protocol used. Also, specific testing of this type can be categorized as medical testing under the ADA and HIPAA. We encourage employers to seek legal guidance and remain cautious in their decisions regarding testing protocol for their workforce. In addition, any employment decisions based on testing results should be made in compliance with Title VII nondiscriminatory laws.