As New York enters a new phase of the COVID-19 pandemic and New York businesses are beginning to reopen, New York is taking steps and providing tools to employers in an attempt to mitigate further spread of COVID-19.

On Saturday June 6, 2020, Governor Cuomo issued an Executive Order (Order) expressly granting commercial building owners and retail store owners (Operators) discretion to conduct temperature screenings for COVID-19 through July 6, 2020 and deny entry to any individual who refuses to be screened, or who has a temperature in excess of 100.4 degrees Fahrenheit. The Order releases liability* of such Operators under New York law so long as the temperature screenings are administered non-discriminatorily and in accordance with the Americans with Disabilities Act, and either the New York State or New York City Human Rights Law.

The EEOC has already stated that employers are able to conduct temperature screenings of their employees, but Cuomo’s Order extends this to Operators and permits such Operators to conduct temperature screenings of both tenants and business patrons and refuse entry accordingly.

The relevant portion of the Order provides:

“Consistent with Center for Disease Controls and Prevention and New York State Department of Health Guidance, commercial building owners, retail store owners and those authorized on their behalf to manage public places within their buildings and businesses (collectively “Operators”) shall have the discretion to require individuals to undergo temperature checks prior to being allowed admittance.  Further, Operators shall have the discretion to deny admittance to (i) any individual who refuses to undergo such a temperature check and (ii) any individual whose temperature is above that proscribed by New York State Department of Health Guidelines.  No Operator shall be subject to a claim of violation of the covenant of quiet employment, or frustration of purpose, solely due to their enforcement of this directive.  This directive shall be applied in a manner consistent with the American with Disabilities Act and any provision of either New York State or New York City Human Rights Law.”

*Disclaimer: It is uncertain whether Governor Cuomo has the legal authority to issue a waiver of liability absent legislative approval.

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