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Editor's Note: Employers can implement on-site temperature and health screenings to help control the spread of Covid-19 in the workplace. Employers that choose to do so should ensure that they remain in compliance with Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and all applicable federal, state, and local laws. To review state-specific laws and regulations on workplace pandemic requirements, see State L&E Developments.
Coverage
This policy applies to all employees, contractors, customers, and other visitors to [Company] premises for the duration of the Coronavirus pandemic. All other policies remain in effect unless otherwise noted.
Comment: In order to best protect employees, temperature screening policies should apply to all individuals who enter employer premises.
Screening Requirements
In order to stop the spread of Covid-19, all individuals entering [Company] premises will be subject to temperature and health screening. Any individual who has symptoms of a Covid-19 infection or has a temperature of 100.4°F (38°C) or higher will be prohibited from entering [Company] premises and asked to contact their health care provider.
Comment: Temperature screening alone will not guarantee a safe workspace. The Centers for Disease Control and Prevention has acknowledged that Covid-19 doesn't cause a fever in every person and that individuals may be able to transmit the disease before they show any symptoms. See CDC's Coronavirus Disease Resources: How COVID-19 Spreads. In order to account for the potential absence of this symptom, employers should still implement and enforce social/physical distancing protocols, increased cleaning, and other safety measures.
The CDC defines a fever as a temperature that is 100.4°F (38°C) or higher. See CDC's Care Kit.
Screening Process
Temperature screenings will be conducted immediately outside the [Company] worksite by trained health care professionals. During temperature screenings, individuals will be asked to report if they have symptoms of a Covid-19 infection, as defined by the Centers for Disease Control and Prevention. Employees’ temperatures and their answers to health screening questions will be kept confidential.
Comment: The Equal Employment Opportunity Commission has acknowledged that the coronavirus pandemic presents a direct threat to employees and allows employers to conduct health screenings and temperature checks without violating the Americans with Disabilities Act. However, the EEOC's guidance does not eliminate the ADA's confidentially requirements, so employers should be careful to maintain employee privacy throughout the screening process and maintain any records of employees’ health screenings separately from their personnel files. See EEOC's Pandemic Preparedness in the Workplace and the Americans With Disabilities Act; 29 C.F.R. § 1630.14(c)(1).
Employers should take care to properly train and protect employees who perform temperature checks and health screenings. Protection should include physical barriers, personal protective equipment or cloth face coverings, and touchless thermometers.
Employers should monitor the CDC's Symptoms of Coronavirus website and update their screening procedures as necessary.
All individuals who visit [Company] premises are required to practice social distancing and encouraged to wear face coverings during the temperature screening process.
Comment: Employers may be required to pay employees for the time they spend waiting in line. See Point of Law and State comparison chart: Compensable Time.
Employees and other visitors are encouraged to check their own temperature before arriving at [Company] premises. Any employee who has a fever higher than 100.4°F (38°C) or exhibits any symptoms of Covid-19 is prohibited from coming to [Company's] worksite. Employees should notify their manager and their health care provider.
Comment: Employers can and should encourage employees to check their temperatures before coming to work. This helps to minimize the risk to employees who are performing or waiting to undergo temperature screening.
Leave
Employees who test positive or exhibit symptoms of a Covid-19 infection are entitled to [describe leave available]. Employees who need to use this leave should contact their immediate manager.
Comment: Employees may be entitled to leave under existing leave policies, the Families First Coronavirus Response Act, or applicable state law. See Federal and state comparison chart: Paid Sick Leave.
Accommodations
Employees who are unable to participate in temperature or health screenings due to disability or religious belief should contact [contact person]. If employees feel that screening procedures are unsafe and present an immediate threat to their physical safety, please contact [contact person]. Employer complies with all applicable federal, state, and local workplace laws.
Comment: Employees with disabilities may be entitled to accommodations under the ADA or applicable state law. Employers that receive accommodation requests should engage in the interactive process to determine if accommodations, such as additional PPE, will allow the employee to safely return to the workplace. If reasonable accommodations can't be found, present an undue hardship for employers, or if, even with accommodations, the employee poses a direct threat to themselves or their coworkers, the ADA allows the employer to prohibit the employee from returning to work. See 42 U.S.C. §§ 12111 to 12112; 29 C.F.R. § 1630.9. Employers should check state requirements before refusing disability accommodations. See State comparison chart: Disability Discrimination.
Employees can object to temperature checks based on sincerely held religious beliefs and request accommodations under Title VII or applicable state law. As with disability accommodation requests, employers should engage in the interactive process to determine whether reasonable accommodations are available. If accommodating an employee's religious beliefs if doing so would cause more than de minimis burden, Title VII allows employers to refuse the accommodation. Employers should check state requirements before refusing religious accommodations. See State comparison chart: Religious Discrimination.
Generally, employees cannot refuse to participate in temperature screening based on their political beliefs. Private employers are not government actors and are not required to guarantee free speech for their employers. Although employees in the public sector do have some free speech rights, government employers can impose regulations on their employees’ conduct that are designed to protect health, safety, and welfare of the public. Some states have laws that protect employees from discrimination based on their political activities, however, those laws are limited to political activity performed during non-work hours. See State comparison chart: Lawful Activities.