Employers can take employees’ temperatures to respond to and manage the COVID-19 pandemic. The Equal Employment Opportunity Commission has stated in its updated guidance that the COVID-19 crisis permits employers to measure employees’ body temperatures before allowing them to enter the worksite. Indeed, the Centers for Disease Control recommends in its community mitigation framework that workplaces in areas with “minimal to moderate risk” implement regular temperature and respiratory checks. 

How to Conduct Temperature Checks

As for the precise temperature to determine a health risk or fever, the CDC uses 100.4 degrees Fahrenheit. If possible, the person doing the temperature checks should be trained and should use touchless forehead or other outside of the body thermometer methods. Moreover, because testing personnel are in a high risk area (due to contact with more people), OSHA suggests that they be provided with appropriate PPE, including gloves, gown, face shield or goggles, and either a face mask or a respirator (e.g., an N95 filtering facepiece), depending on the circumstances. For the persons conducting testing and throughout the workplace, all other precautions for COVID-19 (social distancing, PPE, deep cleaning, washing hands, etc.) should generally remain in place. 

What to Do with Temperature Information

The CDC advises that any employee with a high temperature should be sent home. The Americans with Disabilities Act does not interfere with employers following this advice. 

Because of privacy rights and HIPAA regulations, collected information should be treated as confidential and shared only with those who have a need to know.  Employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the ADA, separately from the employee’s personnel file. An employer may, however, disclose the name of an employee to a public health agency upon learning that the employee has COVID-19.       

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2020. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writers directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.