To slow the spread of the coronavirus, millions of United States workers are under government orders to stay at home.  However, many businesses considered “essential critical infrastructure” continue to operate and their employees are needed to work.  Many of those businesses are administering health tests like temperature checks to ensure the health and safety of their workforce and the public.  When quarantine restrictions eventually lift, businesses will reopen and employers may choose to screen employees before returning to work.  In a question and answer format, this article discusses the intersection of laws that require employers to maintain a safe work environment with an employee’s right to privacy.

According to the World Health Organization, the primary symptoms of coronavirus include fever, tiredness and dry cough.  Other reported symptoms may include shortness of breath, aches and pains, sore throat, nausea, runny nose and loss of smell or taste.  Temperature checks are currently the most common form of workplace testing.  As we learn more about the virus, other forms of inquiries or testing may arise.

Q: Can employers screen employees for COVID-19 by taking employees’ temperatures?

A: Yes.  Generally, the Americans with Disabilities Act (ADA) and California’s Fair Employment Housing Act (FEHA) prohibit employers from requiring employees to undergo medical examinations unless the examinations are “job-related and consistent with business necessity.” However, the California Department of Fair Employment & Housing recently issued guidance entitled DFEH Employment Information on COVID-19 stating: “Generally, measuring an employee’s body temperature is a medical examination that may only be performed under limited circumstances.  However, based on current CDC and local public health information and guidance, employers may measure employees’ body temperature for the limited purpose of evaluating the risk that employee’s presence poses to others in the workplace as a result of the COVID-19 pandemic.” According to guidance issued by the EEOC entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, the EEOC provides, “measuring an employee’s body temperature is a medical examination.  Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.  However, employers should be aware that some people with COVID-19 do not have a fever.”

Q: Do employees maintain their privacy rights during a pandemic like COVID-19?

A: Yes.  Both federal and state laws recognize that employees maintain certain privacy rights in the workplace, including a medical condition or personal health information.  But this right is not absolute and must be balanced against a company’s legitimate business needs.  For example, the ADA, Family Medical Leave Act (FMLA), and California’s FEHA prohibit employers from disclosing confidential medical information, including the identity of an employee confirmed to have a communicable disease.  But employers have an obligation to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” under the General Duty Clause of OSHA.

Q: How should employers take employees’ temperatures?

A: Testing should be administered in the least invasive way possible, like utilizing temperature guns or forehead temperatures.  If a medical professional or person with medical training is available, have them administer the temperatures.  If somebody with medical training is not available or onsite, the company should consider whether managers within the organization may be trained to administer and read whatever testing mechanism the company uses.  Finally, testing should be administered based on legitimate and nondiscriminatory business needs.

Q: Do employers need employees’ consent or to provide any disclosures before taking their temperatures?

A: Employers do not need to obtain written consent to take employees’ temperatures during a pandemic if the test is not invasive.  However, in California, employees of businesses covered by the California Consumer Privacy Act (CCPA) may be entitled to a disclosure called a “Notice at Collection.”  This Notice must describe at the time of collection, what information is being collected (body temperature) and the purpose(s) for which the information will be used (to maintain a safe work environment).  This may be done through a general notice to all employees or by posting a disclosure at the site where temperatures are being taken.

Q: During a pandemic, may an employer ask employees why they have been absent from work if the employer suspects it is for a medical reason?

A: Yes.  Asking why an individual did not report to work is not a disability-related inquiry.  An employer is entitled to ask why an employee has not reported for work.  If an employee discloses an illness or medically-related reason for absence, employers must maintain that information as a confidential medical record.

Q: During a pandemic, may an employer ask employees if they have lost or diminished smell or taste senses?

A: Yes.  New reports suggest COVID-19 may impair an infected person’s sense of smell and/or taste.  Asking questions about taste and smell are not intrusive and could identify employees that have the virus but do not exhibit any other symptoms.  If an employee discloses an illness or medically-related reason for their diminished senses, employers must maintain that information as a confidential medical record.

Q: What information may an employer reveal if an employee is quarantined, tests positive for COVID-19, or has come in contact with someone who has the virus?

A: Employers should not identify any such employees by name in the workplace to ensure compliance with privacy laws.  If an employee tests positive for or is suspected to have COVID-19, the employer will need to follow the most current local, state, or federal public health recommendations.  Employers should take further steps at the direction of the local public health department that may include closing the worksite, deep cleaning, and permitting or requiring telework.  Employers must notify affected employees in a way that does not reveal the personal health-related information of an employee.  For example, the employer could speak with employees or send an email or other written communication stating: “[Employer] has learned that an employee at [location] tested positive for the COVID-19 virus.  The employee received positive results of this test on [date].  This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”  Employers may not confirm the health status of employees or communicate about employees’ health.

Q: During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?

A: Yes.  An employer may require employees to wear personal protective equipment during a pandemic.  However, where an employee with a disability needs a related reasonable accommodation (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

Q: If an employee is sent home, can an employer require temperature testing or doctor’s note to confirm they are no longer infected?

A: Yes.  If someone has been sent home due to symptoms, administering a temperature test before allowing the employee to return to work is appropriate as the CDC recommends individuals be fever-free for at least 24 hours to ensure they have recovered.  Additionally, the EEOC has clarified that the ADA permits employers to require employees returning to work to provide a doctor’s note stating they are fit for duty because the inquiry would not be disability-related or would be a justified business necessity.  The EEOC notes, however, that “doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation.  Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”

Q: How should employers treat the information it may collect about employees’ test results or conditions?

A: Several state data breach statutes and privacy laws require personally identifiable medical information be secured from unauthorized access or breach.  This would include an employee’s first name or first initial and last name in combination with medical information which could include results from temperature tests, questions/answers about employee’s taste/smell, testing for the virus, doctor’s notes, or similar information.  In California under the CCPA, if this information is breached, employees may be entitled to statutory damages ranging from $100-750.  First, consider whether it is necessary to record the data for normal temperatures.  If recording is necessary, consider minimizing the data elements collected when recording temperatures.  If all temperature checks are recorded, only record last name of employee and temperature, rather than first and last name.  If the results suggest the individual may be infected and will be sent home, as a result, make sure you clearly document the results of the examination and treat the record as an employment medical record.  Data retained that reflects employee’s medical information should be encrypted and only accessible to key personnel who have a need to access such data.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus (COVID-19) Insights page.

As you are aware, things are changing quickly and there is no clear-cut authority or bright-line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address other the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney-client relationship. Please contact your Sheppard Mullin attorney contact for additional information.*

Original Post Shared via Texas Association of Business from The Labor Law Employment Blog