Authored by: Dean R. Dietrich
Employers are trying to decide whether or not to temperature test employees who are returning to work and maybe even temperature test customers/contractors who enter company property. Because of all of the uncertainty regarding the Coronavirus, federal agencies have recognized the importance of temperature testing and have “loosened” restrictions about the testing of employees and even customers.
The testing of an individual’s temperature is still considered a medical examination and the results must be protected as confidential medical information. However, employers are more free to engage in this testing to protect individual employees and others in the workplace.
A body temperature above 100.4 does not necessarily mean that an individual has the Coronavirus but at least it is a quantifiable screening test that can be used by employers to protect others in the workplace. It is readily accepted that an employee who tests for a temperature of 100.4 or above should be sent home and not allowed into the workplace. The same is true for visitors. The only other options would be for the company to put the employee with a high temperature in an isolated area to avoid any contact with other employees.
Here are other considerations:
- The testing should be done by a medical professional or person trained by a medical professional how to appropriately engage in the temperature testing.
- The person conducting the temperature test should be given appropriate protective gear including the use of a mask and/or a face shield and gloves to avoid any elements of possible contamination.
- It is certainly preferred that the testing should be conducted with a contactless thermometer that would either test the forehead through a swipe process or test in the ear without contacting any fluids of the testee. It may be challenging to find the appropriate equipment and some authors have suggested that you should not engage in testing if your only alternative is to test for temperature by using a mouth thermometer. If you are going to use a mouth thermometer, the best practice is for the tester to be equipped with all personal protective equipment and use disposable gloves for every test. This simply may not be practical.
- It is best to have the time spent by an employee being tested be considered work time rather than face a legal challenge in the future for failure to pay the employee for necessary steps to enter the workplace. We do have several “donning and doffing” cases where the employer did not have to pay for the time spent by an employee putting on necessary work clothing; however, that is not a guarantee that time spent in checking for fever would not constitute work hours for the employee.
- The information gained from testing for a high temperature should be considered confidential and protected from disclosure to others. Records of the testing should be kept in a separate file and not included as part of the personnel file of the individual employee.
- If an employee tests for a high temperature (100.4 degrees or above), the employee should be immediately screened into a separate waiting area and arrangements made for the employee to return home and have his/her health monitored. Special efforts should be undertaken to make this process as private as possible to avoid rumors and to eliminate any hysteria from others.
- The company should create a specific notice that it sends to all employees regarding the testing requirements and the policy that employees are not allowed to enter the workplace until they have completed a temperature test. This policy should be communicated broadly to employees with postings at the entranceways to the workplace. If you have a unionized workforce, the information should be communicated to the local union representatives and the company should consider any input from the union officials.
- Another alternative is to ask each employee to self-test and record their temperature before leaving to come to work and then providing an affidavit/statement when arriving at work of the test results. This option, of course, is much harder to validate but may be an acceptable alternative for those work settings where employees are able to successfully implement social distancing guidelines.
The impacts of the Coronavirus vary from person to person. Many individuals are willing to return to normal and are not concerned about the potential of catching the virus. Other employees, especially those with underlying health conditions, may be very concerned about the potential of catching the virus and facing severe medical conditions. Employers must do their best to balance these differing opinions about the virus and do their best to ensure a safe work environment for their employees. We have yet to see any cases regarding the duty to provide a safe workplace under state law or OSHA requirements, but that may be a thing of the future.
If you have questions, please contact Dietrich VanderWaal, S.C. at (715) 845-9401 or (715) 574-4747.
Dean R. Dietrich, Esq.
Dietrich VanderWaal, S.C.
530 Jackson Street
Wausau, WI 54403
(715) 845-9401
dietrich@dvlawgroup.com
https://www.dietrichvanderwaal.com/
