To protect American workers, the U.S. Equal Employment Opportunity Commission (EEOC) on April 17, 2020, issued new guidance on the potential application of the Americans with Disabilities Act.

The EEOC says, generally, that businesses probably can continue taking precautions, such as checking an employee’s temperature and asking whether an employee is experiencing any COVID-19 symptoms, before allowing employees to enter the workplace.

Therefore, temperature scans, symptom monitoring, and COVID-19 health tests during the coronavirus pandemic are acceptable medical exams under the ADA. They are considered job related and consistent with a business’ mandate to protect employees in the workplace.

Still, these procedures raise many questions.

Are employers required by law to implement temperature checks to return to work?

This is the 1,000-pound elephant in the room. While the EEOC recommends temperature checks, businesses must address logistical and legal issues, which continue to change by the day, if not the hour. In March 2020, Walmart announced that it would take workers’ temperatures. Since then, many employers have moved to implement health testing and temperature checks.

The answer to whether employers are required by law to implement temperature checks to return to work will depend on states’ laws and can be complicated further by industry norms and guidelines.

In addition to requiring temperature checks, employers must address wage and hour issues. They must determine whether time waiting for and participating in temperature checks are compensable for non-exempt (i.e., non-salaried) employees. In California, for instance, employees must be compensated for the time spent undergoing required safety protocols.

Do employers need a temperature check policy and what should it include?

Companies should have a temperature check policy that complies with state and local orders. If your company is located in multiple states, you must comply with requirements in each state.

An excellent source of workplace guidance is the Society of Human Resource Management (SHRM), which has made its coronavirus resources widely available during the pandemic.

An employer temperature check policy should include:

• The process of temperature checks including the screening area(s).
• The temperature threshold over which employees will not be permitted to enter the workplace.
• The safety measures put in place by the employer.
• The employer’s social distancing requirements.
• Whether employees are required to self-monitor at home (this varies by state).
• How employees with a fever greater than 100.4 Fahrenheit will be handled.
• The company’s privacy and recordkeeping protocols.
• The employee’s written authorization.

What are the best practices for temperature checks for coronavirus?

In addition to having a clear and well communicated temperature check policy, employers should:

• Provide PPEs to the individual administering the check.
• Use a touchless thermometer/scanner (when available).
• Apply 4 degrees Fahrenheit as the threshold temperature.
• Maintain 6-foot distance whenever possible.
• Scan everyone, including employees, visitors and vendors.
• Conduct the scans in a private location.
• Treat all people consistently.
• Consider all privacy issues.

Keep records confidential and separate from employee’s HR/personnel files. The EEOC allows employers to maintain a log of temperature check results but must maintain confidentiality of this information, other than disclosing the employee to a public health agency if the company learns an employee has COVID-19.

Treat all health-related documentation confidential. All points of the process, including collecting, storing, transmitting, using and disclosing the screening results, must be safeguarded. In addition, consider your company’s factors as they relate to the maintenance of the records and the time the records must be preserved.

Can employers test for COVID-19?

According to the EEOC, an employer can test for COVID-19. In fact, an employer also can refuse to hire an individual who tests positive for COVID-19.

Once testing is widely available, it may become commonplace to be screened for COVID-19 before being permitted to return to work. According to the New York Times article, The Coronavirus in America: The Year Ahead:

“Soon the government will have to invent a way to certify who is truly immune. A test for IgG antibodies, which are produced once immunity is established, would make sense, said Dr. Daniel R. Lucey, an expert on pandemics at Georgetown University’s law school. Many companies are working on them.”

Employers should implement policies for employers returning to work. Such policies should include:

• Notice to employer within 24 hours of an employee testing positive for COVID-19
• Notice to employer if employee has come in contact with someone diagnosed with COVID-19 within 48 hours
• Self-monitoring and self-reporting guidelines (if permitted in your state)
• Criteria for health screening limited to COVID-19 symptoms

What happens if an employee refuses to have their temperature taken?

In general, employers must determine how the company will handle such situations. A refusal raises many issues such as:

• Will the employee be sent home?
• Will the employee be paid for the time at home or be required to take PTO?
• Are you an employer with a collective bargaining agreement and if so, what does it say?

It is prudent to address these scenarios in the firm’s testing policy and to consult with an employment lawyer in your state.

What actions can an employer take if an employee is exhibiting symptoms of COVID-19 but refuses to go home?  

The Occupational Safety and Health Act (OSHA) general duty clause, Section 5(a)(1) requires employers to furnish to each of its employees a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

It is in your company’s best interest to reason with the employee. Explain that it is in their and their co-workers’ best interest for the individual to go home. Coronavirus is a public health issue and the individual may be putting many people in harm’s way. Know your company’s PTO policies and whether the individual should take vacation, sick, or some other PTO. If the employee still refuses to leave the premises, you may need to take harsher measures.

According to Fisher Phillips, “If the employee refuses to leave the workplace, you can consider explaining that the employee is now trespassing on private property and if they do not leave you will be forced to call local law enforcement to escort them off the premises; or (b) terminating the employee for insubordination.”

Typically, calling law enforcement or terminating the employee can be perceived negatively by the court of public opinion. However, on the other side of empathy and forgiveness is anger and animosity. Just like not wearing a mask in public settings has become reason for criticism by the general mask-wearing public, the public perception of employers doing their best to keep employees and customers healthy may very well be greeted with empathy and the employee who refuses to go home may be greeted with anger.

Can an employer terminate an employee for engaging in risky conduct or for testing positive for COVID-19?

Many state laws protect employees from being terminated for conduct outside of work. However, you do have the right to ask an employee to self-quarantine if the employee is likely to put the health of other employees in danger. For sensitive matters such as this, be sure to consult your company’s general counsel or seek the guidance of an employment law attorney.

What are employers allowed to do with testing information?

Tests are available to identify whether someone actively has the virus or has had the virus in the past, indicated by the presence of antibodies. This data is being gathered by hospitals, testing centers, and government agencies. This information can be troubling. If coronavirus continues as a lingering threat to businesses, or returns in waves, it is likely that employees who have immunity could become more desirable. This could lead to discriminatory practices in hiring – especially if having had COVID-19 leads to a presumed immunity.

As a result of the “vulnerable employees” list provided by the EEOC, it is important for employers to protect companies from immunity discrimination just as you would from discrimination based on disability, age, gender and national origin.

While the CDC provides a list of people who need to take extra precautions, an article written by Akin Gump Strauss Hauer & Field LLP attorneys, published on JD Supra notes, “An employer may not ask employees who are asymptomatic whether they have a medical condition that would place them in a high-risk category unless the inquiry is made for a permissible purpose under the ADA.  … The EEOC advises that given current circumstances, employers and employees should both try to be as flexible and creative as possible when engaging in the interactive process.”

The White House taskforce guidelines list “vulnerable individuals as the elderly” (with no definition of what “elderly” means) and “individuals with serious underlying health conditions including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.”

Additional Temperature Check and Health Testing Considerations for Employers

In the coronavirus world, it’s important to be aware of the considerations that come into play when determining whether you plan to return to your regular place of business. If so, decide exactly how you will handle temperature checks and health screening. Additional considerations include:

• Who will perform the screening/testing? (e.g., another employee, company nurse, HR, employees self-test).
• Where will the screening/testing take place? (e.g., drive-thru testing with employees coming through a separate entrance or a designated area such as a medical tent).
• Whether or not the screening/testing results will be recorded.
• If recorded, how the information will be recorded (e.g., a daily log sheet listing all employees, a separate log sheet per employee).
• How and where the screening/testing information will be stored.
• The length of time screening/testing information will be retained by the employer.

Wherever possible, consider long-term work from home options

In an earlier post, Getting Back to Work (Reopening the Physical Office) in the Coronavirus World: What Is the New ‘Business as Usual’?, we shared our belief that “companies that can and do maintain social distancing protocols, long after their states reopen to business, will safeguard their workforce. This will result in fewer exposures, health issues and deaths due to coronavirus.”

For businesses able to provide long-term work from home options, consider reading the following:

We also understand that many industries do not have the ability to continue to operate with employees working from home. We will continue to provide helpful coronavirus resources so you know what to do, how to prepare to reopen, and the myriad other things to consider. Stay well.