Formulating a reopening plan raises many questions about how to ensure employees are healthy prior to reentering the workplace. Both the Center for Disease Control and the U.S. Equal Employment Opportunity Commission recommend that employers implement a strategy for determining whether employees present COVID-19 symptoms to mitigate the risk of spreading the virus. Health and safety authorities universally agree that strategy should include utilizing no-contact temperature taking devices. Aside from the logistical difficulties of implementing such a system, temperature-taking poses multiple questions under various employment and privacy laws.

California Consumer Privacy Act

The CCPA imposes restrictions on certain businesses that collect personal information, which is defined as “information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.” This definition encompasses medical information, although whether employee temperatures and related information falls within that scope is unclear. If the CCPA does apply, covered businesses will be obligated to formally notify prospective or current California employees of the fact that information relating to their temperatures is being collected and the purposes for which it will be used. Businesses are also prohibited from using the collected information for any purpose other than the purpose disclosed in the initial notice to the California employee in question.

State Breach Notification and Biometric Privacy Laws

Employee temperatures may constitute personal information that is potentially subject to various state data breach notification laws. These statutes generally require businesses to notify affected individuals if there is a breach of personal information. In the event of a data breach in connection with employee temperature information, employers may be subject to the requirements of various state laws requiring notice to affected individuals and remedial action.

Many states have also enacted specific laws in connection with gathering and storing biometric data. Employee temperature information could fall within this category, subjecting employers to additional biometric-specific requirements such as developing written policies establishing a data retention schedule and guidelines for destroying biometric information. Biometric data class actions have been a growing trend in recent years—to date, however, only Illinois’ Biometric Information Privacy Act contains a private right action.

Americans with Disabilities Act and the Rehabilitation Act

The Americans with Disabilities Act (ADA) and the Rehabilitation Act contain various requirements and rules about medical examinations and inquiries. The EEOC has issued comprehensive guidance with respect to an employer’s obligations under the ADA and the Rehabilitation Act during the COVID-19 pandemic. Neither the ADA nor the Rehabilitation Act prohibit taking an employee’s temperature. However, measuring an employee’s body temperature is considered a covered medical examination, and employers must keep employee temperature information confidential and store the information separately from the employee’s personnel file.

Employers should designate an appropriate person to take temperatures. The appointed person need not be a medical professional, but should be properly trained and provided with personal protective equipment. The appointed person should take employees’ temperatures as privately as possible and keep the identity of any employees with fevers confidential. Employers are permitted to inform other employees of possible exposure, but must do so without disclosing the identity of the potentially infectious employee.

– Keesal, Young & Logan Employment Group
– Keesal, Young & Logan Privacy and Data Security Group
This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.