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  • Henry Park

Can a business require temperature testing of employees?

Generally, an employer cannot require US employees coming to work to take a temperature test. This is because temperature checks would be considered an overly broad medical examination in violation of the Americans with Disabilities Act (ADA).

In 2009 at the time of the H1N1 influenza pandemnic, the Equal Employment Opportunity Commission (EEOC) released a pandemic preparation guide concerning the ADA (see EEOC link, updated for COVID-19). The guide states that a medical exam can be performed "when the employer has a reasonable belief, based on objective evidence that: (a) an employee's ability to perform essential job functions will be impaired by a medical condition; or (b) an employee will pose a direct threat due to a medical condition." An employee poses a "direct threat" when there is a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." In other words, whether a "pandemic influenza rises to the level of a direct threat depends on the severity of the illness". And, if the CDC or public health authorities determine that an influenza if significantly more severe that would be the objective evidence needed to permit an employer to require employees to take a temperature test.

If public health agencies do determine there is a pandemic (such as COVID-19) is a direct threat, then temperature testing is just one of the precautions your business should be taking. A few of the other precautions you should be taking are:

1. asking your employees to stay at home if they are sick or experiencing symptoms;

2. providing additional cleaning of the work facilities and additional cleaning supplies for your employees;

3. encouraging good hygiene practices;

4. allowing non-essential employees to work remotely;

5. reducing business travel;

6. asking employees who have been to "hotspot" locations to self-quarantine to ensure that they are healthy before returning to work;

7. screening visitors to the workplace;

Photo by kian chang on Unsplash

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