As Iowa continues to restart its economy, many businesses are considering how to safely reopen their workplaces.
One question employers may face is whether to implement a temperature screening procedure in an effort to protect employees and minimize the risk of spreading COVID-19. Many health and legal implications must be considered in the adoption of such measures.
The Legality of Screening Employees’ Temperatures
The Equal Employment Opportunity Commission (EEOC) has made it clear in guidance documents that employers are allowed to monitor employees’ temperatures during the coronavirus pandemic. Under the Americans with Disabilities Act (ADA), mandatory medical examinations—including temperature taking—are only allowed if they are job related and consistent with the employer’s business needs. Considering recommendations by the Centers for Disease Control and Prevention (CDC) and the current circumstances of the pandemic, the EEOC is allowing employers to take steps to determine whether employees entering the workplace have COVID-19. The EEOC has acknowledged that these steps may include both temperature screening measures and asking about symptoms if an employee reports they feel ill or calls in sick. However, requiring any type of antibody test before employees re-enter the workplace remains prohibited under the EEOC’s interpretation of the ADA.
Even though the EEOC has given employers the green light to take temperatures of employees, doing so requires careful planning and implementation. Before beginning temperature checks or other COVID-19 screening procedures, businesses should provide advance, written notice to employees. This notice should explain the basis and method that will be used to conduct the screenings, the steps the employer is taking to protect employee safety and privacy, and the consequences for failing to comply with a screening. The notice should also make it clear that a lack of fever does not mean the person does not have the virus and it should advise employees to continue to take appropriate precautions and report to the employer any COVID-19 related symptoms they may be having.
Whoever is assigned to take the temperature must be properly trained in how to use the device and what procedures to follow. Procedures to be put in place include setting a cut-off temperature (100.4° F), what to do about high temperatures, how to record results, and how to keep the results and consequences of a high temperature confidential and private.
The CDC outlines two options for on-site screening procedures. Under the first approach, the screener stands behind a physical barrier, such as a glass or plastic window or partition. Using disposable gloves and keeping his or her face behind the barrier, the screener checks the employee’s temperature by reaching through the window or around the partition. (No-touch or low-touch thermometers are best.) Under the second approach, the screener uses a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), and disposable gloves when taking employees’ temperatures.
Under either approach, the CDC recommends that anyone with a fever 100.4° F or higher should be sent home immediately and instructed to promptly call their doctor. Employers should follow up with employees who are sent home with additional information about any available benefits and return-to-work protocol.
Importantly, to decrease the likelihood of the virus spreading, employees should maintain adequate social distancing when waiting their turn to be tested. Thus, employers should devise ways in which to avoid having them simply wait in line. Adding shifts, staggering start and end times or having multiple testing lines and entrances are all ways in which an employer can prevent employees from crowding at entrances and waiting in close proximity to be tested. Placing markings on the ground to indicate six-foot lengths apart could also help to provide for greater social distancing while employees wait to be screened. Some employers even have employees wait in their cars until they are summoned to enter the building for their screening.
Employers who do not want to take temperatures may still want to require employees to take their own temperature before coming to work. With this self-reporting method, employees can be asked to confirm that their temperature was below 100.4° F when they report for work. Here, employees should be required to stay home if their temperature exceeds the threshold, to call in to report the absence and the reason for it so further actions can be taken, as needed, as well as instructed to contact a doctor, and perhaps to take a COVID-19 test.
Minimizing Potential Legal Issues
Privacy concerns should remain a prevalent consideration if a business decides to implement screening procedures. The ADA requires employers to maintain the confidentiality of all information obtained through employment-related medical examinations. Because temperature screening is considered a medical examination, any information collected as part of a temperature screening process—including any type of temperature log—must be treated as a confidential medical record and should be maintained separately from the employee’s personnel file. However, an employer may disclose the name of an employee to a public health agency when it learns an employee has COVID-19.
Employers should also consider how to protect the privacy of employees who have a fever and need to be sent home. This means employers should contemplate ways to privately screen employees away from others and ways employees with a fever can exit the premises inconspicuously. Openly or publicly indicating that a worker has a fever after a temperature screening, or other COVID-19 symptoms after a verbal screening, likely violates ADA confidentiality requirements.
To avoid potential discrimination claims, employers should be careful not to pick and choose who is subject to temperature screenings. These screening should be done as part of a nondiscriminatory plan, such as screening the portion of a business’ workforce that, due to job or location, is unable to maintain proper social distancing measures. If an employer decides to screen every employee entering the workplace, that employer should conduct the same checks on non-employees who enter the premises, such as visitors, vendors, and contractors. Such measures reduce everyone’s risk of exposure, and, at the same time, minimizes any risk of a discrimination charge.
Whether non-exempt employees should be paid for time spent getting their temperature checked—and potentially waiting in line do so—has not yet been definitively determined. Although Iowa law does not address when waiting time must be compensated, the Fair Labor Standards Act (FLSA) does. Under the FLSA, waiting time should be compensated when it belongs to and is controlled by the employer, and the employee is unable to use the time effectively for his or her own purposes.
Even so, the FLSA does not require employers to pay for “infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes.” This de minimis rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities. An employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained.
Now you see why payment for time spent waiting for and providing COVID-19 screenings is not clear. Whether an employer should pay employees for time waiting to be screened and being screened will depend on unique and specified facts and circumstances. To be on the safe side and remove all doubt, non-exempt employees likely should be compensated for this time.
Screening New Hires
In addition to screening procedures for current employees, many employers may consider screening applicants. The EEOC advises that an employer may screen job applicants for symptoms of COVID-19 only after—not before—making a conditional job offer and so long as the business does so for all applicants entering the same type of job. This includes taking an applicant’s temperature. If an applicant is found to have a fever of 100.4° F or higher, or has symptoms associated with COVID-19, an employer can delay the start date of that individual. However, unless the employer can show that it needs the applicant to start immediately, a job offer may not be withdrawn simply because an applicant has a fever or other symptoms of the coronavirus. Lastly, while symptoms of COVID-19 justify postponement, the start date of a new hire may not be postponed unilaterally simply because an applicant—due to a medical condition, age, disability, or otherwise—is at a greater risk for COVID-19 complications.
The EEOC’s guidance is silent about screening applicants who physically visit the employer’s work site to apply or interview for jobs. Taking an applicant’s temperature at this pre-offer stage is a risk under the ADA. In the interests of health and safety, it is presumed such applicants could be treated the same as any other visitor, vendor, or contractor entering that same work site. To remove doubt, avoid on-site recruitment. Instead, use electronic recruiting means (e.g., electronic completion and submission of applications, virtual interviews), in lieu of in-person methods.
It is important for employers to realize that taking temperatures of applicants and employees and screening them for symptoms of COVID-19 is not a foolproof way to prevent the spread of the virus in the workplace. Current medical information suggests many individuals who have been exposed to this virus do not have a fever, and some do not have any symptoms at all. As a result, employers cannot simply rely on temperature taking to determine who is virus-free and who is not.
We all look forward to the day when the pandemic is over. Remember, though, that when a formal declaration of such has been issued, the EEOC will revert to its usual rules. That means taking the temperature of employees, or screening them for temperatures and other symptoms of COVID-19, will no longer be allowed, as a matter of course.
Employers must continue to practice and promote actions to avoid the spread of the virus in the workplace for the foreseeable future. These include maintaining adequate distances between employees in the workplace, requiring frequent hand washing and disinfecting at work, and frequently cleaning and disinfecting common areas and touch-points throughout the workplace.