The World Health Organization has declared COVID-19 an international pandemic, and, as a result, federal, local and state governments have declared a state of emergency across the U.S. In light of the advice given by the WHO, Centers for Disease Control and Prevention, government officials and doctors, employers should remember they still must comply with employment laws, including the Americans with Disabilities Act. The U.S. Equal Employment Opportunity Commission published its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act in 2009 after the H1N1 outbreak. This guidance applies equally to the current COVID-19 pandemic. The EEOC’s guidance outlines questions and answers to guide employers before, during and after a pandemic. In response to the question, “May an employer take an employee’s temperature?” the EEOC responded as follows:
“Under normal conditions, an employer is not permitted to take an employee’s temperature because it is considered a medical examination. However, in this pandemic the EEOC agrees that since the CDC has issued precautions to employers, employers may measure an employee’s temperature. Be aware that, according to the EEOC and CDC, some people with COVID-19 do not have a fever.”
Other advice is that employers be consistent with taking temperatures. That is, an employer typically would not take the temperature of one employee who exhibits a cough and not another. Also, any information gleaned from taking employees’ temperatures should be treated as confidential. If there is a written record created, it should be kept in a separate confidential medical file under lock and key as opposed to being interspersed with an employee’s regular employee file.
Finally, an employer would not utilize an employee’s name in relation to any inquiry into an employee’s symptoms, including as it relates to temperature taking. If an employee presents with a high fever or otherwise admits to something when having his or her temperature taken, the employer would not then disclose that employee’s name to others. For instance, if an employee admitted, while having his or her temperature taken, to various symptoms or even that he or she had been diagnosed or come into contact with COVID-19, though it would be appropriate to let other employees who came into contact with the employee know that another employee was experiencing symptoms or diagnosed with COVID-19, the employer would not disclose the symptomatic or infected employee’s name.