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Since our initial alert, the EEOC has re-issued its guidance, confirming specifically that the COVID-19 pandemic permits employers to measure employees’ body temperatures before allowing them to enter the worksite. As we noted previously, any such screening should be implemented on a nondiscriminatory basis, and all information gleaned should be treated as confidential medical information under the Americans with Disabilities Act (ADA)—specifically, the identity of workers exhibiting a fever or other COVID-19 symptoms should only be shared with members of company management with a true need to know.
Additionally, employers should understand that screening employees’ temperatures is just one of the screening devices that employers may utilize and will not completely mitigate the risk of contagion, as some people with COVID-19 do not have a fever and may also otherwise be contagious without experiencing any symptoms.
Recently, several states and local municipalities, including, without limitation, Ohio, Delaware, San Francisco, and Santa Clara County, have implemented orders or issued guidance urging or requiring that temperature checks be implemented before employees are permitted to report to work. The U.S. Centers for Disease Control and Prevention (CDC) also has issued COVID-19 specific guidance urging workplaces located in communities with minimal to moderate COVID-19 risk to implement regular health checks, including temperature and respiratory symptom screening.
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