While we are not aware of specific guidance as to “where and when” employee temperatures should be taken, if the employer proceeds with this undertaking, presumably the employer would seek to take employee temperatures at the outset of any shift and in an isolated area so that no employees are permitted to enter common areas and/or perform work until such time as there is confirmation that they do not have a fever. The employer would do well to avoid making assumptions that an employee with a fever has COVID-19 (although certainly any such employee should be sent home. See the CDC’s guidance for employer instructions as to sick employees at Plan, Prepare and Respond to Coronavirus Disease 2019. The employer must also ensure that if it proceeds with taking employee temperatures, it does so in a manner that is not unlawfully discriminatory or retaliatory. The employer cannot and should not seek only to test employees who are older, or have known or perceived disabilities or are otherwise in a protected class. This can expose the employer to additional claims.

Given the recent outbreak of COVID-19 and the concern of contraction through close human-to-human contact, employers should carefully consider the propriety of proceeding with having one or more employees take the temperature of co-workers, particularly if using an oral or ear-based thermometer. If, however, the employer seeks to utilize an infrared or similar touchless thermometer, which presumably minimizes human-to-human contact, this may lessen the risk associated with virus transmission or other contamination. If the employer proceeds it should ensure a uniform and consistent application of this policy, communicated in advance to personnel. Those employees charged with taking temperatures should receive appropriate and adequate training, including the use and care of the requisite equipment (thermometer) as well as their obligation to maintain appropriate confidentiality of test results. They should also be provided with the requisite personal protective equipment (PPE) – along with instruction as to their proper donning, doffing and disposal — to ensure they are not unnecessarily exposed to a heightened risk of virus transmission while undertaking such examinations. The employer may wish to consider having employees take their own temperatures, or have a trained healthcare worker do so, as an alternative. We also recommend contacting your insurance carrier(s) for further information before undertaking any permissible medical examination, i.e., taking employee temperatures, in your workplace.

While employment law issues are relevant here and are referenced above, to be sure, what constitutes the correct method through which to take another person’s temperature, or how to do it in the safest manner, are not matters controlled by federal or state employment laws. We recommend that employers contact their local public health department and/or the local office of the federal Occupational Safety and Health Administration for specific guidance on how the employer may implement a safe and accurate method of doing so.