Are Workplace Temperature Checks Legal? Experts Weigh In
Labor lawyers explain how and why your boss can make temperature checks mandatory during the pandemic.
With essential workers from medical professionals to grocery store clerks still going into their physical workplaces on a daily basis, many businesses have instituted safety precautions. From reorganizing offices to ensuring social distancing to mandating masks, employers are putting new rules in place to reduce the spread of coronavirus. Some workplaces have taken an even more dramatic—and controversial—step: Requiring employee temperature checks upon arrival at work. Establishing this process raises a lot of questions, so we spoke to experts in labor law and the medical field to find out what you need to know about mandatory workplace temperature checks right now. And for more coronavirus insight, check out This Is the No. 1 Mask Mistake You're Probably Making.
Is it legal for my workplace to take my temperature?
"Normally, employers would not be able to take employee temperatures as it would violate the Americans with Disabilities Act (ADA)," says Brett Holubeck, JD, a labor and employment law attorney at Alaniz Law & Associates in Houston, TX.
Generally speaking, workplace medical testing can't be a requirement, because screening for certain symptoms would inevitably result in discrimination against individuals with a wide variety of disabilities and medical conditions. However, due to the unprecedented nature of the COVID-19 pandemic, the rules for what employers can and can't make their employees submit to have changed dramatically.
"Because the [Centers for Disease Control and Prevention] and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees' body temperature," Holubeck explains.
This is true even of employees who have privacy clauses in their contracts. "It is likely that there is nothing in any contract about [a pandemic], and therefore [temperature checks] will not be against the contract," explains attorney Justin Meyer, Esq., a partner at Rosenthal Meyer, PLLC. And if you want to know how big box stores are stemming the spread, these are The Coronavirus Safety Precautions Walmart Employees Have to Take Now.
What about my privacy?
Fortunately, what your employer can do with the information gleaned from temperature checks is limited. Holubeck notes that your temperature and any other medical information your boss or human resources department learns during a screening is still subject to ADA confidentiality requirements. This means that your employer can't legally tell your coworkers that you have a fever or publicly name any employees who have been diagnosed with COVID-19.
Labor and employment law attorney Richard Dreitzer of Fennemore Craig adds that employers will need to take precautions to ensure that the information they are gathering remains private. "You need to protect identity and test as discreetly as possible. No lines outside the HR office," he says.
And in order to ensure that the testing itself isn't called into question, Dreitzer cautions that employers that do choose to do employee temperature checks "need to make sure that their organization passes the perennial tests of competence, consistency, and common sense." In lay terms, companies should have established protocols—such as using the same type of thermometer (whether it's of the oral or infrared variety) for all employees, pre-determining what body temperature reading will be high enough to send employees home, and re-assessing these measures to keep them in line with updated guidance from the CDC.
These protections don't ensure that the information discovered is immediately deleted, however. Holubeck says that, according to Occupational Safety and Health Administration Standards, your employer must keep your health records for the duration of your employment, plus 30 years. And for more COVID-19 facts, check out Here's How Long Coronavirus Germs Stay in the Air Just From Talking.
Can I be fired for refusing a temperature check?
If you choose to refuse a temperature check, your employer may be able to take action against you. In the case of at-will employees—which make up the majority of American workers—termination with or without cause can occur at any time. Meyer says that refusing a temperature check "could be deemed a for-cause firing for endangering the safety of the workplace."
For at-will employees, the rules regarding employment can change at the drop of the hat.
"The employer could make anything a condition of employment, as long as that particular condition did not violate a specific law," such as racial or gender-based discrimination, says Joseph Slater, JD, PhD, a Eugene N. Balk Professor of Law and Values at The University of Toledo Law School. "A non-unionized private-sector employer could legally make 'being a fan of the Detroit Pistons' a condition of employment," he explains. Basically, your employer has carte blanche to require that you have your temperature taken on a daily basis for work as long as no laws are being broken in the process.
Can my union prevent mandatory temperature checks?
Even if you are a member of a union, your boss can go outside of your contract if they deem it necessary to keep others safe.
"There's a well-known concept in labor law called 'exigent circumstances' that permits an employer to implement changes, without union agreement, in response to unforeseeable circumstances that require immediate action," says David Miller, a board-certified labor and employment law attorney with Bryant Miller Olive. Unforeseeable circumstances would include the coronavirus pandemic.
Do temperature checks even work?
While mandating employee temperature checks isn't particularly problematic from a legal standpoint, medical experts warn that it might not be completely effective. Physician scientist William Li, MD, author of Eat to Beat Disease, says that one of the major flaws in giving employee temperature checks is that asymptomatic individuals with COVID-19 can still pass the virus to others. Another issue with the practice? "Not all people may have a fever when they are infected with COVID-19," but may present with other symptoms instead, he cautions.
Li also notes that many other medical conditions—including minor infections that aren't easily transmitted to others—can cause fevers. So employers may end up send home mostly healthy individuals who aren't in danger of spreading disease to those around them.
Still, temperature checks may be the best option employers have right now.
"The only truly effective gauge for determining whether an employee has COVID-19 is to administer an antigen or antibody test," says Cara Pensabene, MD, medical director of EHE Health. Unfortunately, it can take up to a few days to receive the results of these tests, so sick employees could potentially continue spreading the virus before the results come in.
While there's no magic bullet for keeping everyone safe, Li says that many of the precautions already in place can help stop the spread, even without temperature checks. Those precautions include spacing out desks in offices, encouraging hand washing, and having shared spaces thoroughly cleaned. Employers should also be promoting safe off-the-clock behavior, he says.
"Making sure your employees are practicing safety at home with masks, distancing, and other recommended maneuvers outside of work is an important part of ensuring health in the workplace," Li explains.