Workplace Screenings After Stay-At-Home is Lifted: Can My Employer Take My Temperature?

Despite the impending deadline of the May 15th stay-at-home order, which will undoubtedly be extended, New Yorkers are starting to imagine what life will be like when the order is fully lifted and people start returning to work. While it’s wishful thinking that things will just return to normal, the reality of this pandemic is that we are very far off from what normal use to look like. Until an effective vaccine is developed and mass produced, we will continue to live in a world of glove wearing, masks and facial coverings and life under the guidelines of the buzz word of 2020 . . . social distancing.

As we slowly inch closer towards businesses and places of employment reopening, employers are tasked with considering how business will be conducted in a safe and effective manner while taking steps to limit the spread of the coronavirus. Large in-person meetings will likely convert into virtual meetings and staggered work schedules will become the norm. Likewise, social distancing measures will be put in place at most workplaces to safeguard against this virus.

In coordination with the Center for Disease Control, the Equal Employment Opportunity Commission, has established guidance for employers to develop workplace pandemic planning, while remaining in compliance with the Americans with Disabilities Act. Until the World Health Organization and CDC lift the pandemic declaration, employers are permitted to take precautions that to some, might seem overly intrusive.

Under the guidance, during this pandemic, employers are permitted to do the following:

Send employees home if they display influenza-like, or COVID-19 symptoms;
Ask employees if they are experiencing or previously had COVID-19 symptoms, such as fever, chills, a cough, shortness of breath, or sore throat, but maintain the responses as a confidential medical record in compliance with the ADA;
Exclude employees from the workplace who exhibit symptoms of COVID-19 or have been diagnosed with the virus;
Conduct COVID-19 testing (must consult with FDA guidance) to employees before they enter the workplace (Please note: This is no longer valid, per EEOC guidance);
Measure employees’ temperatures prior to entering the workplace; however, it is noted that some people with COVID-19 do not have a fever;
Encourage employees to telework;
Require employees to adopt infection-control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
Require employees to wear personal protective equipment (PPE), such as, gloves, face masks or gowns. However, where an employee with a disability needs a related reasonable accommodation under the ADA, such as non-latex gloves, the employer should provide these, absent undue hardship;
Require a doctor’s note certifying fitness to return to work

The guidance also provides that, during the pandemic, employers are NOT permitted to do the following:

Compel employees to take the influenza vaccine or COVID-19 vaccine (when it becomes available);
Ask employees who do not have influenza symptoms to disclose if they have a medical condition that the CDC says could make them especially vulnerable to complications;
Ask employees whether they have family members who have COVID-19 or exhibit symptoms of COVID-19
- In the alternative, they can ask if the employee has been in contact with anyone who has been diagnosed with COVID-19 or has symptoms of the virus.
Exclude employees from the workplace that are at higher risk of having complications from COVID-19 due to their age, condition, ethnicity, etc. as specified by the CDC.

Ultimately, as time passes and we learn more about this virus, these guidelines will likely change. However, at this time, while we continue to monitor new information, employers can prepare for when the stay-at-home orders are lifted.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.