Temperature screening and the ADA: What you need to know

August 10, 2020 12:24 PM

Employers have a lot to consider when going back to work. But, for some employees, considerations are more complicated because of pandemic-related accommodations needed under the Americans With Disabilities Act (ADA).

In March, 31% of employees worked from home out of concerns surrounding the coronavirus. In May, this number had risen to 62%, according to Gallup. Now, employers like Google and Business Insider are not expecting a full return to work until next summer. But while this seems like a long way off, now is the time for employers to educate themselves about the ADA regulations regarding a workplace return.

“The ADA has not changed in the face of COVID-19, but everything around us has,” said Karen English, SVP at Spring Consulting Group, at the Disability Management Employer Coalition conference Wednesday. “We're all trying to figure out this new normal.”

There are three key return-to-work considerations when it comes to the ADA and employee health: temperature checks and medical inquiries, confidentiality rules and employers at higher risk.

Temperature checks and medical inquiries

The prior Equal Opportunity Employment Coalition (EEOC) regulations about checking employee temperature addressed the H1N1 virus and the flu, but have been modified to accommodate the current pandemic environment.

Because the CDC, state and local authorities have acknowledged community spread of COVID-19, temperature screening is appropriate for employers, according to updated EEOC guidance.

As employees return to the office, temperature screening must be done as consistently as possible, English said. While the ADA doesn’t have rules that employers must test everyone, there is risk of discrimination involved with picking and choosing those who you screen.

“Go back to that tenant of being consistent,” English says. “Have a process. Be consistent. Train folks so they know what the process is. Make it known.”

Confidentiality rules

Recording and storing temperature data related to screenings have come under scrutiny by employees concerned about privacy, said Tracie DeFreitas, lead consultant at the Job Accommodation Network. Under the ADA, this is considered medical information, and must remain confidential.

“You have to be careful,” DeFreitas said. “You're doing what would be considered a medical exam and a medical inquiry. Under the ADA rules you have to ensure that that information remains confidential.”

Information tangentially related to screening needs to be protected as well. Any comments about not feeling well, or requests for accommodations related to having COVID-19 must be treated as confidential, and stored in a medical file in compliance with the ADA.

Employees at higher risk

For employers with higher-risk employees, it is important to have clear cut procedures on requesting accommodations.

“If you want to ensure that people can come back into the work environment, and you have some concerns about the possibility that some might need accommodations, then one practice is just to make sure everyone knows how to go about requesting an accommodation, and who they should get in touch with.” DeFreitas said. “You have to treat everyone in the same way.”

DeFreitas noted that these processes should look similar to pre-coronavirus ADA guidance, just tweaked slightly to address concerns surrounding COVID-19.

Other ADA-related regulations to note are the Pregnancy Discrimination Act and the Age Discrimination and Employment Act, both of which aim to protect at-risk employees. In situations with these populations, DeFreitas said there is a compliance route that can be taken with ADA accommodations if deemed appropriate, but she also encouraged employers to look at any flexibility outside of the official ADA accommodations that can help employees feel more comfortable.

“Yes, you can go the compliance route,” DeFreitas said. “But you can also take a look at what sort of flexibilities can be afforded to individuals to keep them working and to keep the business running.”