Can your employer require you to provide your body temperature / submit to a temperature reading?
The current COVID-19 pandemic is unprecedented, and thus is causing workers to navigate their rights in response to unprecedented changes in the workplace. One specific example of this, is when it comes to issues such as employees being required to provide their body temperature on.
The EEOC recently provided guidance on this issue, and issued a publication titled, Pandemic Preparedness In The Workplace And The Americans With Disabilities Act which provides information related to this issue. Here is the short version:
Question: Can your employer require you to provide your body temperature /submit to a temperature reading?
Answer: Yes, under certain circumstances such as when a health pandemic has been declared, and it constitutes a direct threat to the health or safety of others.
For the long version, please refer to the publication and this reference document from the Department of Fair Employment and Housing for a complete analysis of this issue. Following are excerpts from the publication.
The EEOC originally issued a similar publication to provide technical assistance about Titles I and V of the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act and pandemic planning in the workplace. This document was originally issued in 2009, during the spread of H1N1 virus, and was been re-issued on March 19, 2020, to incorporate updates regarding the COVID-19 pandemic.
The publication identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning such as:
- When may an ADA-covered employer take the body temperature of employees during a pandemic?
The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:
- An employee’s ability to perform essential job functions will be impaired by a medical condition; or
- An employee will pose a “direct threat” due to a medical condition.
This reasonable belief must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.
All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential. Information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.
The EEOC defines a “direct threat” as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.
Assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a specific disability or disabilities. The EEOC’s regulations identify four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.
Current Situation and the Direct Threat of COVID-19
Direct threat is an important ADA concept during an influenza pandemic.
Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.
During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.
If you or your Union members are dealing with this issue or have additional questions, you should contact Goyette and Associates at 916-851-1900.