As some employees start to trickle back into their workplaces, employers might consider taking body temperatures of their employees to check for any high fevers. Under normal circumstances, taking body temperatures of employees would be considered a medical exam that would be subject to the Americans with Disabilities Act (ADA). However, due to the COVID-19 pandemic and the fact that a high fever is one of the known symptoms of COVID-19, the Equal Employment Opportunity Commission (EEOC) has stated that employers are permitted to measure body temperatures of employees. Businesses that choose to check body temperatures of employees before they enter the workplace should be cautious not to do so in a discriminatory manner, such as on the basis of race, sex, religion, national origin, age, disability or other protected categories. Employers must maintain the confidentiality of information regarding employees’ body temperatures and store such information separately from personnel files.
Employers should also seek legal counsel to determine whether they may have to compensate workers for time they spend waiting for and having their body temperatures checked prior to entering the workplace.
With respect to face masks, many states have already begun to require employers to provide face coverings to their employees. In particular, as we previously reported, New York essential businesses that have employees physically present in the workplace must provide face coverings to their employees at the employer’s expense. New Jersey essential retail businesses have also been mandated to provide face coverings and gloves to employees at the employer’s expense. These face coverings include, but are not limited to, fabric masks, surgical masks, N-95 respirators, and face shields.
If you have any questions or concerns about taking body temperatures of employees and providing proper PPE, please contact Chaim Book at cbook@mb-llp.com, Sheryl Galler at sgaller@mb-llp.com, Lianne Forman at lforman@mb-llp.com, Chris Neff at cneff@mb-llp.com, or Jennifer Kim at jkim@mb-llp.com.
