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Taking temperatures: 6 tips to do it legally

05/21/2020

For many employers, a key part in restarting the workplace during this crisis is screening employees’ temperatures to prevent infection spread.

Ordinarily, the ADA strictly limits you from conducting any such medical tests on workers. However, the EEOC has said checking temperatures during a pandemic is appropriate. Even so, there are legal risks. Follow these tips from the Foley & Lardner law firm:

Designate a staff member. Unless you have medical staff on site, train one or more managers to conduct the tests. Document the training.

Provide proper equipment/PPE. Use a temperature gauge that requires no direct contact with the employee. Handheld forehead-scanner guns are ideal. If you must use a thermometer that requires physical contact, make sure the temp-taker has adequate personal protective equipment: gloves, mask, goggles and gown.

Establish a target temp. The federal CDC says a fever for covid-19 purposes is any temperature of 100.4 degrees or higher. Your state or locale may have a lower threshold. Check.

A positive: Now what? Discreetly tell the employee that she won’t be able to enter the workplace. She should quarantine for 14 days. After then, she shouldn’t return to work until she is fever-free and symptom-free for at least three days.

Records to keep. If you record temperature information, the ADA requires maintaining it confidentially. Provide it only to those who need to know. It’s fine to simply record “yes” or “no” regarding an employee’s temperature. Do not place temperature documentation in an employee’s personnel file.

Is temp time compensable? Most likely, yes. Courts will eventually decide if time spent getting one’s temperature taken (and waiting in line) is compensable. The best practice for now is to pay for that time, especially if required by a legal authority.

Federal law prohibits pausing compensable time once a workday begins (aside from unpaid lunch breaks). So if the day starts with a paid temperature check, all subsequent pre-shift activities will likely be considered “paid time” as well.