Testing Employees’ Body Temperatures Upon Arrival to Work
- By: Sean Cameron
The
State of California is currently amidst the COVID-19 pandemic. In response, the
Governor of the State of California has issued a stay at home executive order
in order to help mitigate the effects of the pandemic in California. This
includes the requirement that employees stay at home and not go into work,
whether it be an office or a jobsite, unless their position is deemed
“essential.” (Executive Department of the State of California, Executive Order
N-33-20 [ordering California residents to stay home or at their place of
residence, unless exempted]; California Public Health Officer, Essential
Critical Infrastructure Workers, March 22, 2020.)
Many public
employees are considered essential. These essential employees are continuing
to, or will be asked to, deliver services that are critical to the health and
safety of the jurisdiction and its citizens, including being asking to come
into work where there is not an option or it is not feasible to work remotely.
Because one of the primary symptoms of the virus includes fever (see Cal. Dept.
of Public Health, COVID-19 Public Health Guidance, March 15, 2020), it is
appropriate for the jurisdiction to test employees’ body temperatures when they
arrive to work each day in order to mitigate the potential spread of the virus.
May
a jurisdiction screen employees for COVID-19 by taking employees’ body
temperatures?
As a
general rule, the Americans with Disabilities Act (“ADA”) and the California
Fair Employment and Housing Act (“FEHA”) do not allow employers to force their
employees to be subjected to medical examinations, unless the examinations are
“job-related and consistent with the business entity.” (42 U.S.C.
§12112(d)(4)(A); Cal. Gov. Code, §12940(f)(2).) The issue has been presented as
to whether a jurisdiction can systematically institute medical examinations of
their employees by taking their body temperatures. This testing is not
technically job-related and is not consistent with the historical practices of
the Jurisdiction. Thus, doing such testing would be a violation of the ADA and
FEHA.
However,
the California Department of Fair Employment & Housing (“DFEH”), the agency
charged with enforcing FEHA, has issued guidance stating that it is allowable
under the current circumstances. “Generally, measuring an employee’s body
temperature is a medical examination that may only be performed under limited
circumstances.
However, based on current CDC and local public health
information and guidance, employers may measure employees’ body temperatures
for the limited purpose of evaluating the risk that employees’ presence poses
to others in the workplace, as a result of the COVID-19 pandemic.” (Department
of Fair Employment and Housing, DFEH Employment Information on COVID-19, March
20, 2020.) In addition, guidance from the U.S. Equal Employment Opportunity
Commission (“EEOC”) also clearly supports the ability of employers to measure
an employee’s body temperature under the current circumstances. “Generally, measuring
an employee’s body temperature is a medical examination. Because the CDC and
state/local health authorities have acknowledged community spread of COVID-19
and issued attendant precautions, employers may measure employees’ body
temperatures.” (EEOC, What You Should Know About the ADA, the Rehabilitation
Act, and COVID-19, updated April 9, 2020.) Therefore, a jurisdiction is within
their authority to require jurisdiction employees to have their body
temperatures taken as a condition to work, and to send them home in the event
they are sick.
ConclusionThe
jurisdiction may screen employees for COVID-19 by taking their body
temperature. Generally, in normal times, an employer is not allowed to subject
their employees to medical examinations. But these are not normal times. The
State of California is currently amidst the COVID-19 pandemic. As such,
governing agencies, including the EEOC and the DFEH, have issued clear guidance
that employers have the ability to require that their employees have their body
temperatures taken as a means to mitigate the spread of the virus.