The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance giving employers the green light to take employees’ body temperatures in an effort to mitigate the spread of COVID-19 in the workplace.  Should an employer decide to implement such measures, there are possible implications under the Occupational Safety and Health Act that employers should keep in mind. 

OSHA considers taking body temperatures to be biological monitoring within the purview of 29 C.F.R. § 1910.1020.  Documentation of body temperatures constitutes a medical record, triggering confidentiality obligations and a retention period of 30 years.  As such, employers should determine whether they are going to comply with OSHA’s retention obligations, or alternatively, take employees’ temperatures and merely view the results without tracking or recording the data.

With respect to California employers, state-specific wage and hour laws require that employers pay their employees for the time to take body temperatures.  In addition, if an employer requires its employees to take their body temperatures before coming to the workplace, the employer must supply its employees with thermometers.