By Christina M. Reger, Esq. and Anastasia Baranowski

Arrive at work. Check. Punch In. Check, Have temperature taken. Wait, what?!?!

In times as novel as these, everyone is working to prioritize the safety of themselves, their families, and their employees. Although many businesses are closing in response to government mandates, others are needed to stay open and maintain business as usual. However, in the interest of safety, “business as usual” is about to involve some very unusual practices. This includes monitoring the body temperature of working employees.

On March 18th, the EEOC announced new guidance for employers permitting this practice in an effort to prevent the spread of the notorious COVID-19.

 If you’re an employer and you think this sounds like it could get you into trouble, your instincts are correct! Under normal circumstances, the Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with “business necessity.” Taking your employees’ temperatures like a grade school nurse would definitely fall under this category. However, in its guidance, the EEOC discusses the interplay with the ADA and gives the employers the OK to take this precaution due to the highly infectious nature of COVID-19.

 But will taking temperatures actually help? “Employers should be aware that some people with COVID-19 do not have a fever,” the CDC stated, “and some people with a fever do not have COVID-19.” As a result, some attorneys are recommending that, if you’re sending someone home as a result of a fever, you should continue to pay these employees to limit legal risk. (Recommended by Jeff Nowak, an attorney with Littler in Chicago).

 Some employees may also refuse to comply when requested they have their temperature taken. You can’t exactly force them to comply, but you could potentially send them home without pay if they decide to refuse. This would not come without legal risk, but it is unclear at this time what legal risk that could be. Employers could send the employees who refuse home with pay to limit that risk, but that could create a slippery slope. As much as we want to believe our employees want to be at work, word will likely spread that you can just refuse the temperature test and get a two-week paid vacation. The likely best option for now is to make a temporary policy for all employees to have their temperatures taken. If someone has a fever, they’re sent home with pay, if they don’t have a fever they continue working unless they begin to feel symptoms of COVID-19. If they refuse to get their temperature taken, they’re sent home without pay. The clearer this type of policy is, the less legal risk there is for an employer in these weird and uncertain times.

These are certainly uncertain times. Have your employment attorney on speed dial or at the very least, get plugged in to the many legal articles and blogs addressing these issues and be sure you understand the latest guidance . . . which seems to change daily.