On March 18, 2020, we published an alert informing employers that, due to the severity of the COVID-19 outbreak, they could lawfully take employees’ body temperatures as a condition of their entering the workplace.  At that time, our conclusion was based on previous guidance the U.S. Equal Employment Opportunity Commission (EEOC) released during the 2009 H1N1 outbreak.  Since our initial alert, the EEOC has re-issued its guidance, confirming specifically that the COVID-19 pandemic permits employers to measure employees’ body temperatures before allowing them to enter the worksite.  As we noted previously, any such screening should be implemented on a nondiscriminatory basis, and all information gleaned should be treated as confidential medical information under the Americans with Disabilities Act (ADA)—specifically, the identity of workers exhibiting a fever or other COVID-19 symptoms should only be shared with members of company management with a true need to know.  Additionally, employers should understand that screening employees’ temperatures is just one of the screening devices that employers may utilize and will not completely mitigate the risk of contagion, as some people with COVID-19 do not have a fever and may also otherwise be contagious without experiencing any symptoms.

Recently, several states and local municipalities, including, without limitation, Ohio, Delaware, San Francisco, and Santa Clara County, have implemented orders or issued guidance urging or requiring that temperature checks be implemented before employees are permitted to report to work.  The U.S. Centers for Disease Control and Prevention (CDC) also has issued COVID-19 specific guidance urging workplaces located in communities with minimal to moderate COVID-19 risk to implement regular health checks, including temperature and respiratory symptom screening.

Given the increased focus on this particular preventive measure, it is important for employers to ensure that when they take employees’ temperatures, they do so safely.  However, none of the EEOC, CDC, or the Occupational Safety and Health Administration (OSHA) has yet issued guidance on a process or requirements specific to temperature checks.  Because some employers already are required by state and local orders to institute temperature checks, we offer below both general best practices and specific compliance approaches that employers may consider.  It is crucial for employers implementing temperature checks to review emerging requirements, including guidance from state and local health authorities.

The following best practices should be considered and implemented, as appropriate, in connection with temperature testing.  Employers should:

• Communicate clearly in advance with their workforces regarding temperature checks and related implications (e.g., being sent home).
• Set a temperature screening threshold over which employees will not be permitted to enter the workplace.  The CDC considers a person to have a fever when he or she has a measured temperature of at least 100.4 degrees Fahrenheit; many employers have adopted screening thresholds in the 100-100.4°F range.
• Seek to facilitate testing in the least invasive way possible, including by attempting to procure devices that can register temperature without exposure to bodily fluids (e.g., no-contact thermometers).  Ohio and Delaware COVID-19 screening guidance recommends touchless (forehead/temporal artery) thermometers if possible, but directs employers to disinfect thermometers if oral or other types of thermometers must be used due to procurement challenges.
• Appoint someone with proper training—ideally an on-site medical staff person or other medical professional (e.g., R.N., M.A.) if possible—to facilitate or administer on-site temperature checks, as discussed below.
• Maintain social distancing (e.g., by establishing multiple temperature check stations at large facilities to minimize crowding), clean and disinfect medical equipment, and take other COVID-19 related precautions.

Employers may also evaluate specific compliance approaches based on their industry sector, location, and the requirements of applicable orders.  For instance, consider whether applicable requirements may be satisfied by directing employees to self-administer the tests and report the results to the employer on a daily basis before entering the facility.  Employers using that approach should appoint a facilitator and provide that facilitator with the authority to direct employees with elevated temperatures not to report to work (or to send home employees who have arrived already, if advance communications are not practicable).¹  Self-administered temperature tests may help to minimize risk in terms of spread of COVID-19 and are simpler to administer from a compliance perspective.

If an employer is required by a state or local order to conduct on-site temperature tests (or elects to do so), the employer still has options to minimize risk.  One approach is to have employees self-administer tests at designated locations on-site and show the reading to a test facilitator, who determines if the temperature is elevated and has the authority to send home affected employees. Another, more involved, approach is for the employer to administer the test.  In either case, OSHA requires the employer to evaluate reasonably anticipated hazards and assess the risks to which workers may be exposed.  Although OSHA has not yet issued recommendations specific to temperature taking, it has issued general COVID-19 workplace guidance, which was the subject of a prior alert.

That OSHA guidance established categories of worker COVID-19 exposure and related risk.  Although that analysis is workplace specific, it is most conservative to treat temperature test facilitators or administrators as a high/very high exposure risk since they likely will be in close proximity to a large number workers, including potentially infectious individuals.  Workers in that risk category must be supplied with appropriate personal protective equipment (PPE).  OSHA advises that such workers likely need to wear gloves, a gown, a face shield or goggles, and either a face mask or a respirator (e.g., an N95 filtering facepiece), depending on their job tasks and exposure risks.  Employers should review OSHA’s PPE standards at 29 CFR 1910 Subpart I and Respiratory Protection standard, 29 CFR 1910.134 for selection, training, and other applicable requirements, but from a basic process standpoint, test facilitators/administrators should take the following steps: (1) perform hand hygiene; (2) don appropriate PPE; (3) check temperature; (4) remove and properly discard PPE; and (5) perform hand hygiene.  Employers also should ensure that hand hygiene facilities (e.g., sink or alcohol-based hand rub) are readily available at or adjacent to the temperature station.

In light of the complexities associated with taking employee temperatures, employers should carefully review the terms of local and state orders recommending or requiring temperature checks.  If an employer elects to administer the tests, it should explore engaging a third-party healthcare vendor or other medical professional to advise on, and potentially run, such a program.  As orders and recommendations are developing rapidly, employers should track emerging guidance applicable to their facilities, and we will continue to report on the same.

WilmerHale’s employment and environmental/OSHA teams are available to answer developing questions and help companies navigate their compliance obligations during this crisis, including to tailor best practices to unique operational circumstances and applicable requirements.