As the COVID-19 situation continues to evolve, the White House recently announced that “out of an abundance of caution, temperature checks are now being performed on any individuals who are in close contact with the President and Vice President.”  These checks will cover employees, visitors, and members of the press.  In a prior post, we provided preliminary guidance for employers to follow when responding to COVID-19, including advice on temperature checks on employees before a pandemic is declared.  Since that guidance was issued, the World Health Organization has declared COVID-19 a pandemic, and Governor Lamont has issued several Executive Orders proclaiming a state of emergency in Connecticut.  Following those declarations, we are updating our guidance on temperature checks.

In guidance originally published in 2009, the EEOC provided answers to eleven questions that employers would face during a pandemic, including when employers can send employees home, when employers can require employees to work from home, and when employers can require employees to wear personal protective gear.  That guidance also specifically addressed when employers can check an employee’s temperature after a pandemic is declared:

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever.

Under this guidance, the WHO’s declaration of a pandemic provides employers with more latitude to proceed with temperature checks as part of a multi-faceted approach to limiting the spread of COVID-19.  According to recent news reports, several sectors of companies have started to implement temperature checks, including restaurants, casinos, and food manufacturers.  Such checks also may be important for those employers who work with high-risk patients and clients, including healthcare organizations and nursing homes. Although now permissible, any employer considering implementation of temperature checks must still ensure that they are done in a manner that limits potential legal liability.  As a preliminary matter, the checks should be done in a way that protects the employee’s privacy.  Other issues that should be considered include who is going to conduct the checks, how and where such information will be recorded, what questions may be asked following an elevated reading, and what steps to take based on elevated readings. If you are unsure of what measures you can or should take in regard to temperature checks, please consult with your legal counsel.