The Equal Employment Opportunity Commission has determined that COVID-19 poses a significant risk of substantial harm to health or safety that cannot be eliminated or reduced by reasonable accommodation. As such COVID-19 may fall within a ‘direct threat’ exception to the general prohibition on medical examinations of employees by an employer under the Americans With Disabilities Act.
Many businesses, eager to protect employees and restore the confidence of their customers, have relied on this EEOC guidance and implemented, or are considering, policies requiring screening the temperature of employees in conjunction with other efforts intended to limit the risk of spreading COVID-19.
We urge caution in considering such a policy.
- First, it is important to note that some people with COVID-19 will not have a fever and that non-invasive thermometers may not be as accurate in determining temperature;
- Next, the EEOC has affirmatively stated that the fact that an employee has a temperature or other COVID-19 related symptoms is medical information and would be subject to the confidentiality requirements of the ADA (and associated compliance risks);
- Requiring employees to congregate or wait for screenings prior to a shift may have health and safety, confidentiality, fair pay, and a host of other unrelated consequences;
- State and Federal law, other than the ADA, (i) may be in play with respect to the question – ‘may employers measure an employee’s temperature?,’ (ii) may impact the decision tree that follows such an examination, and (iii) will also impact the confidentiality requirements related to records of these examinations by employers;
- Finally, in addition to the considerations related to the employees who are screened, the employers considering these types of policies must consider the impact on the employees conducting the screening – the CDC has issued guidance on personal protective measures for these situations and other relevant considerations.
We strongly urge employers to contact legal counsel in advance of implementing such a policy or to discuss alternatives.
(Note that the regulatory treatment of this issue will shift as the COVID emergency fades. Employers should regularly update all COVID-19 response policies and review developments in the legal and regulatory framework governing their operations.)
Lewis Glasser is available to answer questions on this, and any other pandemic related concerns, as businesses re-open and manage COVID-19 risks.
Matthew R. Bowles
Lewis Glasser PLLC
(O) 304.345.2000 (Ext. 1039) / (D) 304.414.9001
James M. Becker
Lewis Glasser PLLC
(O) 304.345.2000 (Ext. 1014) / (D) 304.414.9014
Lewis Glasser PLLC
304-345-2000 / lewisglasser.com/covid-19-resources
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