March 20, 2020
The Equal Employment Opportunity Commission (EEOC) recently released updated guidance highlighting permissible actions that employers may take under federal anti-discrimination laws in working to mitigate the effects of COVID-19 in their workplaces.
Employers may now require employees to take their temperature at work. Generally, such a request is considered a “medical examination” that violates the Americans with Disabilities Act (“ADA”) unless it is job-related or the employee poses a “direct threat.” In its newly released guidance, the EEOC emphasized that during the current COVID-19 pandemic, employers are permitted to measure employees’ body temperatures and that such will not be considered a “medical examination” under the ADA.
Further, pursuant to the EEOC guidance, employers may:
Ohio Strongly urges temperature checks: Going a step further than the EEOC, on March 18, Ohio Governor Mike DeWine (R) encouraged all Ohio businesses and non-profits remaining open would to take the temperature of every employee who enters the office. If that is not feasible, he asked that "employers require workers to take their own temperatures prior to arriving at work." The measure was part of a series of protocols laid out by Gov. DeWine and the Ohio Department of Health to combat the spread of COVID-19. “Each one of us must do all we can to limit our exposure and we must stop enabling this enemy,” said Gov. DeWine.
Outlook: Employers can expect the EEOC and other federal labor and employment agencies to continue releasing COVID-19-related guidance over the coming weeks. HR Policy’s guide to COVID-19 and federal labor laws, updated daily, can be found here. Meanwhile, it is likely that measures similar to those put in place by Ohio will continue to proliferate on a state and local level, as jurisdictions everywhere ramp up their efforts to contain the spread of the virus. Notably, Democratic New York Governor Andrew Cuomo has called for federal preemption in many of these areas.