{"id":84,"date":"2020-03-11T09:47:03","date_gmt":"2020-03-11T13:47:03","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/coronaviruscovid19\/?p=84"},"modified":"2020-08-31T09:45:58","modified_gmt":"2020-08-31T13:45:58","slug":"coronavirus-testing-issues-for-employers-reaching-for-thermometer","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/2020\/03\/11\/coronavirus-testing-issues-for-employers-reaching-for-thermometer\/","title":{"rendered":"Coronavirus Testing\u2014Issues for Employers Reaching for Thermometer"},"content":{"rendered":"

By Jonathan Segal<\/a><\/strong><\/em><\/p>\n

Employers need to apply a measured approach to the new coronavirus<\/a>. Some employers are considering measuring the temperatures of their employees before they report to work, since a fever may be a symptom of the coronavirus.<\/p>\n

The Centers for Disease Control and Prevention defines a fever as 100.4\u00b0F\/38\u00b0C or higher.<\/p>\n

The following is a checklist of some of the more salient issues employers need to consider in determining whether to temperature test their employees. <\/p>\n

Is a Temperature Test a Medical Examination Under the ADA?<\/b><\/p>\n

The Americans with Disabilities Act does not define \u201cmedical examination.\u201d However, the Equal Employment Opportunity Commission defines \u201cmedical examination\u201d as a \u201cprocedure or test that seeks information about an individual\u2019s physical or mental impairments or health.\u201d […]<\/p>\n

An employer can minimize, not eliminate, the ADA risk by making clear the temperature test is to determine whether someone has symptoms, not whether he or she has an impairment or medical condition. An employer also can minimize, not eliminate, this risk if it uses a non-invasive means to measure temperatures.<\/p>\n

Privacy Considerations<\/strong><\/p>\n

Visualize a line of individuals waiting to have their temperatures measured. If an employee has a fever, the employee presumably will be sent home. Even if nothing is said, the fact is, some employees will see that worker be denied access. […]<\/p>\n

Union Considerations<\/strong><\/p>\n

If union employees are subject to the requirement, employers need to ask whether the employer can implement unilaterally. The answer is less clear than it may seem.<\/p>\n

The collective bargaining agreement hopefully has a robust management rights\u2019 clause. However, there are National Labor Relations Board and arbitration cases that stand for the proposition that safety rules are not necessarily the same as work rules so that a management rights clause that covers work rules does not necessarily cover safety requirements. […]<\/p>\n

What About the NLRA?<\/strong><\/p>\n

[…] Let\u2019s assume a group of employees refuse to submit to such testing, a real possibility that needs to be considered, particularly in light of the privacy concerns. In such circumstances, the employees most likely are engaging in protected concerted activity under the NLRA. […]<\/p>\n

Wage and Hour Considerations<\/strong><\/p>\n

Let\u2019s imagine again that long line. Employees could be required to wait a considerable amount of time before being able to enter the workplace. It is possible this waiting time may be compensable under the FLSA and\/or state laws, such as in California, which may be even more strict in interpreting when an employee is \u201cwaiting to be engaged\u201d versus \u201cengaged to wait,\u201d the legal issue which would be litigated in these cases. […]<\/p>\n

Other Practical Implementation Issues<\/strong><\/p>\n

Employers need to be clear that the fact an individual does not have a temperature does not mean the or she does not have COVID-19 or any other medical condition. We do not want an employee subject to the temperature test to conclude that he or she has been given a clean bill of health.<\/p>\n

Along the same lines, we do not want any employee to believe that temperature testing ensures there are no communicable diseases in the workplace. It is a precaution; it does not equal prevention. […]<\/p>\n

Think of the logistics of how this would work before implementing temperature testing. It is but one of many issues that may make temperature testing too hot to handle in most industries (one possible exception: health care). […]<\/p>\n

To read the full article by Duane Morris partner Jonathan Segal<\/a>, visit the Bloomberg Law website<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Jonathan Segal Employers need to apply a measured approach to the new coronavirus. Some employers are considering measuring the temperatures of their employees before they report to work, since a fever may be a symptom of the coronavirus. The Centers for Disease Control and Prevention defines a fever as 100.4\u00b0F\/38\u00b0C or higher. The following … <\/p>\n

Continue reading “Coronavirus Testing\u2014Issues for Employers Reaching for Thermometer”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[31,36,682],"ppma_author":[1043],"class_list":["post-84","post","type-post","status-publish","format-standard","hentry","category-general","tag-employment-law","tag-medical-testing","tag-testing"],"authors":[{"term_id":1043,"user_id":6,"is_guest":0,"slug":"duanemorris3","display_name":"Duane Morris","avatar_url":"https:\/\/secure.gravatar.com\/avatar\/843ff6e7a8fe5fc92109b47a45f34b6cf0ea499e6e788db23456c838b0ae6747?s=96&d=blank&r=g","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/posts\/84","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/comments?post=84"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/posts\/84\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/media?parent=84"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/categories?post=84"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/tags?post=84"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/coronaviruscovid19\/wp-json\/wp\/v2\/ppma_author?post=84"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}