This COVID Briefing was authored by J. Scott Tiedemann and Paul D. Knothe.
A fever, which is defined by the Centers for Disease Control and Prevention (CDC) as 100.4°F/38°C or higher, is a symptom and key indicator of COVID-19. Many employers, including law enforcement agencies, are already taking or are considering taking employees’ temperatures before allowing them to begin work for the day.
Taking an employee’s temperature is a medical examination, and under normal circumstances, doing so might violate an employee’s rights under the federal Americans with Disabilities Act and the state Fair Employment and Housing Act to require them to submit to the temperature test simply to enter the workplace. However, medical tests are permissible under both laws if justified by “business necessity,” and during the COVID-19 emergency, until the guidance from federal, state and local health authorities changes. We believe it is likely courts will agree taking employee temperatures is a business necessity in the context of the pandemic.
Requiring employees have their temperatures taken on reporting to work, however, is also likely a change in the terms and conditions of employment for most employees and generally will require an agency to meet and confer. We believe that, in the context of the COVID-19 emergency, a temperature-testing program could qualify for the “emergency exception” under the Meyers-Milias-Brown Act. The emergency exception is applicable when there is an unforeseen situation that poses an imminent and substantial threat to public safety, and where the employing agency reasonably believes that harm will occur if it does not take immediate action. When the “emergency exception” applies, an agency may implement a change first, in order to confront the emergency, and then meet and confer with the affected associations as soon as practicable thereafter. It does not excuse an employer from meeting and conferring; it simply changes the timing of it.
It is more likely than not that courts would consider the time spent by employees having their temperature taken to be compensable work time under the Fair Labor Standards Act and/or the California Labor Code. Federal regulations, at 29 C.F.R. 785.43, provide that time spent by an employee waiting for or receiving medical attention on the premises or at the direction of the employer is compensable work time, and although there is no published authority as to whether taking an employee’s temperature constitutes medical attention, that interpretation is certainly possible. More importantly, because an employee is subject to the control of the employer while having his or her temperature taken (or waiting in line to do so), the courts would most likely find this to be compensable working time. Even if the temperature taking process is run efficiently and requires only a minute or two per officer per day, the courts would likely still find the time to be compensable because the wait occurs regularly and adds up to a larger aggregate amount. If an employer is looking to avoid additional wages owed when doing temperature testing, it should consider doing the testing during the employee’s shift, rather than pre-shift.
Although there may be some legal risks and costs associated with pre-work temperature testing, we expect that many Departments will find the benefits of temperature testing – namely, limiting the spread of COVID-19 in the workplace – to be well worth the legal risks. Departments considering implementing temperature testing are encouraged to consult with trusted legal counsel.