Michelle D. Wyrick and Lilian Williams

As businesses begin the first stages of reopening or increasing employee capacity, many have implemented or intend to implement temperature screening procedures. Some businesses are required to screen employee temperatures as a precondition to open under state or local law, as seen in Kentucky, while other businesses look to screen employee temperatures as a precautionary measure.

Now that the Equal Employment Opportunity Commission (“EEOC”) has announced that the COVID-19 pandemic is a “direct threat,” employer-run temperature checks, which are ordinarily barred as “medical examinations” under the Americans with Disabilities Act  (“ADA”), are permissible. The EEOC has indicated that a “direct threat” will remain until the Center for Disease Control (“CDC”) and state and local authorities revise their evaluations of the pandemic’s severity. Accordingly, employers are currently permitted, encouraged, and in some areas, required, to check employee temperatures.

The CDC has endorsed three different methods of safe temperature screening. The first two procedures, referred to as the “most protective,” incorporate either social distancing or protective barriers, while the third and least protective procedure relies on personal protective equipment (“PPE”) alone. Regardless of which procedure the employer implements, the screening process should be made as private as possible to protect employee confidentiality. Each procedure is outlined below.

Temperature screening that relies on social distancing requires the employees to take their own temperatures either before coming to work or upon arrival. Once at work, the screener will ask the employee to confirm that his or her temperature was less than 100.4°F and that he or she has not experienced any COVID-19-related symptoms. Because the COVID-19 pandemic is a “direct threat,” the EEOC has indicated that employers can ask employees about potential symptoms (fever, chills, cough, shortness of breath, sore throat) and potential COVID-19 related exposure without running afoul of the ADA. The screener should also perform a visual inspection of the employee to ensure he or she is not exhibiting signs of illness (such as flushed cheeks or fatigue). The CDC states that the screening staff need not wear PPE so long as the parties stay at least 6 feet from each other at all times during the screening.

The CDC has also endorsed two procedures in which the employee’s temperature is taken by a screener while at work. The first and more protective approach involves the screener standing behind a plastic barrier to protect him or her from respiratory droplets, while the second relies solely on PPE. If the employer can use a barrier, the screener must wash his or her hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol before beginning the screenings and must wear disposable gloves. Before taking the employee’s temperature, the screener should visually inspect the employee to check for signs of illness. If there are no visible signs of illness, the screener should check the employee’s temperature by reaching around the protective barrier while ensuring his or her face remains behind the barrier at all times. If the screener is performing the temperature check on multiple employees, he or she must use a clean pair of gloves for each screening and must ensure the thermometer is thoroughly cleaned between each use. However, if disposable or non-contact thermometers are used and the screener did not have physical contact with the individual, he or she is not required to change gloves in between screenings. At the end of the process, the screener must remove and discard the gloves and must appropriately wash his or her hands.

Lastly, the CDC states that if social distancing measures or barrier controls are not an option, the screener can perform the health screenings relying solely on PPE by wearing a facemask, disposable gloves, a gown if “extensive contact” is anticipated, and either goggles or a disposable face shield fully covering  the front and sides of the screener’s face. The screener should visually inspect the employee for signs of illness and must dispose of the PPE and appropriately wash his or her hands after each screening.

Any medical information obtained by the screener or employer through any of the above methods, including, but not limited to, the employee’s temperature, medical history, medical conditions, or any symptoms experienced must be treated as confidential medical records subject to ADA confidentiality requirements. Generally, the employer should keep the confidential information separate from the employee’s  personnel file.

Employees who clearly exhibit symptoms while at work or during the health  screenings should be immediately separated from other employees and sent home. The employer should have a plan for transportation in the event the employee needs to be driven home or to a healthcare facility.

The CDC and EEOC caution that not all who have tested positive for COVID-19 have experienced a fever.  Accordingly, employers should work to implement policies within the office that limit the spread of COVID-19 beyond health and temperature screenings. Additional measures include instituting in-office social distancing policies, following all CDC cleaning and disinfection recommendations, and encouraging or requiring employees to wear masks and other PPE. Employers should also be sure to stay up to date with any state and local public health guidance on how best to limit the spread of the disease.

For more guidance, see:

• https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
• https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html
• https://www.osha.gov/Publications/OSHA3990.pdf
• https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

Ms. Williams is a summer associate at Wyatt, Tarrant & Combs, LLP.