As Companies develop their reopening playbook, we know that many are considering instituting temperature screening procedures either as a precaution or because local Orders may require it. Here’s the *tl;dr* on temp checks (it’s okay if you need to look that up . . . some of us did too):

Temperature checks are considered a “medical examination” under the Americans with Disabilities Act (ADA). However, the Equal Employment Opportunity Commission (EEOC) has declared the COVID-19 pandemic to be a direct threat that justifies employee medical examinations under the ADA. See https://www.eeoc.gov/facts/pandemic_flu.html. Until COVID-19 is no longer severe in the US, medical examinations such as temperature checks are permitted if: (1) an employee’s ability to perform essential job functions will be impaired by COVID-19; or (2) an employee will pose a direct threat to herself or others in the workplace due to COVID-19. (While employers may permissibly take employees’ temperatures, it’s important to understand that some people with COVID-19 do not have a fever.)

If a company is going to conduct temp checks at the workplace, we have some tips:

  • Engage a trained professional to conduct the temperature screenings. This is because a trained professional screener can handle the medical information properly and in compliance with applicable health information and data privacy laws. We do not recommend using security guards, receptionists, or other staff, to administer the temperature checks, unless they were specially trained for that purpose, and can handle the medical information properly.
  • Make sure the temperature screener avoids close contact with workers to the extent possible. Both screeners and employees should wear face coverings for the screening.
  • Employers should provide and ensure workers use all required protective equipment. Employers should consider where disposable gloves use may be helpful to supplement frequent handwashing or use of hand sanitizer; examples are for workers who are screening others for symptoms or handling commonly touched items.
  • Make sure that employee medical information, including body temperature results, are kept in a confidential medical file that is separate from the employee’s personnel file, and that access to the information is

Finally, with regard to data privacy considerations, in the US, if a third-party healthcare provider (HCP) will administer these temperature checks, companies should understand the HCP’s position under HIPAA (i.e., if the HCP qualifies as a covered entity, engaging in covered transactions). If the HCP is a covered entity, the transfer of information from the HCP to the company will need to be permissioned (i.e., through a HIPAA authorization form), unless the company relies on an exemption. If the HCP is not a covered entity and information is collected from California residents, the company would likely need to provide a just-in-time notice, pursuant to the California Consumer Privacy Act.  In general, companies should also just be aware of providing appropriate security and limiting access to any health and medical data, as such information will be subject to breach notification and other obligations in many states.

For help developing your company’s policy and practice with respect to temperature checks, contact your Baker McKenzie employment attorney.

With special thanks to Amy de La Lama for her help with this post.

Also: Happy Friday. 🙂