Six Degrees of Separation: Temperature Testing as Employees Return to Work

As states begin to reopen and employees return to the workplace, employers are faced with trying to protect workers and prevent the spread of COVID-19 in the workplace. Many employers are looking to temperature testing as a potential safeguard. Like many emerging safety measures, though, there are several considerations to weigh before implementing temperature testing:

• Is it required? Some states require employers in certain industries to temperature test workers before the start of their shift. The EEOC has blessed the use of temperature tests, and the CDC has encouraged companies to institute regular health checks, including temperature screening, to mitigate the spread of COVID-19. But many jurisdictions and industries do not require temperature checks, so for many employers, it is optional.
• Is it worth it? Where not required, employers should consider whether temperature screening is worth performing. Individuals with COVID-19 may not exhibit symptoms, and individuals with higher temperatures may not necessarily be infected. Moreover, the additional legal and business implications (plus costs) involved with temperature testing may not make sense for some employers.
• What counts as a “fever”? Employers adopting temperature testing will want to set clear guidelines on exactly what it means to have a “fever.” The CDC defines a fever as 100.4°F or higher, but some states, like Delaware, have ordered that, for certain industries, any temperature above 99.5°F renders an employee ineligible to work.
• How will you test, how often will you do it, and what if someone has a fever? A key consideration is how an employer will perform temperature screenings. Will the company hire a health care professional or third-party vendor to administer the testing? Or will it be done by an employee (like a member of HR or security)? If the latter, does the employee have proper training and appropriate personal protective equipment? Employers also will want to decide how often to take temperatures and what to do if a worker has a fever. Will it send the individual home and, if so, pay the worker for the day? Will the employer insist if the employee doesn’t want to go home? What about the day after?
• Where will you test? Some companies opt to test in a private setting within the office, but others take temperatures as employees enter the workplace. In the latter scenario, employers must consider how to maintain adequate social distancing between workers, as well as confidentiality and privacy concerns.
• Will it trigger legal obligations? Some states, like California, require notice to employees. Temperature testing also may implicate recordkeeping and privacy issues. For example, employers will want to maintain employee health data, including temperature checks, separate from personnel files and limit disclosure to a “need-to-know” basis. If the workforce is covered by a collective bargaining agreement, the testing may be subject to a duty to bargain, and even where the testing is not covered by a collective bargaining agreement employers may wish to consult with relevant unions. If workers will need to stand in long testing lines when they show up to the worksite, that waiting time may be compensable under state or federal law. Employers may want to consider staggering shift starts or having multiple temperature takers to avoid the delays.

Ultimately, while temperature testing can be a useful return-to-work safety measure, employers will want to be thoughtful about whether it makes sense for their business and, if so, how to implement it in a smart, efficient way. Employers should continue to monitor state and local regulations, and for additional materials, check out Orrick’s COVID-19 Resource Center. And if you would like to implement temperature testing protocols in your workplace, we can help.