Employees Rights Regarding COVID-19 Screenings at Work
The COVID-19 Pandemic has created one of the largest work disruptions in history, leaving public and private sectors alike to weigh difficult decisions regarding employees’ physical health and organizational economic well-being. As stay-at-home orders are lifted or eased, companies across the country have begun implementing temperature checks in an effort to reopen business operations while also curbing the spread of COVID-19 within the workplace.
Implementation of mandatory temperature checks in workplace procedures has raised several questions on how this effects employees’ rights in this new environment.
Can my employer require employee temperature checks?
Yes, the American with Disabilities Act (“ADA”) allows for employers to require a medical examination of employees, so long as that examination “is job-related and consistent with a business necessity.” The EEOC has issued guidance that, generally, measuring an employee’s body temperature is a medical examination. So, it is likely that the need to keep employees safe from COVID-19 while at work to maintain a workforce will be determined to be consistent with a business necessity and the employer is, therefore, allowed to do this.
If I am absolutely opposed to my employer doing this for privacy reasons, can I protect my rights to privacy under Wisconsin Law?
No, Wisconsin privacy laws will not protect you from submitting to temperature checks. While Wisconsin does recognize an individual’s right of privacy against unreasonable invasions of information, the right to privacy only extends to “highly offensive” invasions that “lack a legitimate public interest,” or invasions negligently performed.[1] Any employer attempting to measure the employee temperatures to screen for possible COVID-19 symptoms likely has a legitimate public interest in doing so.
Can my employer make me arrive early to work for a temperature screening?
Yes, there is no law protecting employees from having to arrive to work early. In fact, Wisconsin, similar to most other states, is an “At-Will” state. This means the employer may terminate an individual for any non-discriminatory reason, including refusing to arrive early or work overtime.
Ok, but must my employer pay me if they require me to arrive early for temperature checks?
Maybe. Courts have assessed whether security checks, and other forms of employer-mandated pre- and post-work waiting, count as work, which must be paid, on a seemingly case-by-case basis. However, waiting time needs to be paid if it is directly related to the performance of an employee’s job duties.
For example, actions taken for employee safety or the sanitation of the company’s product have been considered by courts compensable even when occurring before the employees’ shifts started.[2] As such, any time spent waiting in temperature check lines before work may be compensable, depending on the purpose of employer-mandated temperature checks. Additionally, if that time is compensable and places an employee’s total hours at more than forty (40) hours for the week, the employee is likely entitled to overtime pay for that time spent waiting for a temperature check.
My temperature reading exceeded my employer’s maximum threshold. Can my employer make me go home?
Yes, your employer has the right to manage its work force so long as your employer does not do so in a discriminatory manner based upon a characteristic or class protected by law (i.e. race, creed, religion, color, sex, disability, etc.). This right to manage its workforce includes sending people home because they are sick with what could be COVID-19.
Must my employer pay me for the day I missed because they sent me home?
Yes, in order to protect you, your co-workers, and your families, Congress extended the Emergency Paid Sick Leave Act (“EPSLA”), provided by the Family First Coronavirus Response Act (“FFCRA”), to include individuals who (1) are “experiencing COVID-19 symptoms” and (2) are “seeking a medical diagnosis.”[3] The EPSLA further provides that employees who are experiencing symptoms of COVID-19 and seeking a medical diagnosis are to be paid up to eighty (80) hours of sick pay while they are away from work for that purpose.
According to the Center for Disease Control, COVID-19 symptoms include, among other symptoms, fever or chills. Therefore, any employee found to have a fever by their employer during an employer-mandated temperature check meets the first element to qualify for paid leave under the EPSLA.
All that is left for employees with a fever to qualify the EPSLA paid leave is to seek a medical diagnosis. This can be done by taking affirmative steps to obtain a medical diagnosis in the following ways:
Contact your physician and set up an appointment to get an evaluation regarding a COVID-19 diagnosis.
Take affirmative steps to go to a testing facility or call a testing facility to make an appointment to receive a COVID-19 test.
Do I have to go back to work tomorrow to have my temperature checked again?
No, but you do have to make it explicitly clear to your employer, ideally in writing, that because you have a symptom of COVID-19 you intend to take time off to seek medical diagnosis. This does not need to be done immediately after you test for a fever and are sent home, but it should ideally occur within a day of being sent home.
How long do I have to stay home for if I have shown COVID-19 signs/symptoms?
You have to stay home until your test results come back negative for COVID-19. If the test returns positive for COVID-19, you must stay home until your symptoms subside. However, in addition to the EPSLA providing for eighty (80) hours of paid sick leave for COVID-19, the Emergency Family Medical Leave Extension Act (“EFMLEA”) provides for an additional twelve (12) weeks of leave paid at 2/3 your pay rate for, among other reasons, anyone waiting on a COVID-19 medical diagnosis test to return.
Due to the short supply of testing available as well as the normal scheduling issues involved with setting an appointment with your physician, the taking of affirmative steps to seek a medical diagnosis will provide EPSLA coverage even if the appointment is set in a few days or if the test, once taken, takes longer than expected to return. The key is to try and get a medical diagnosis for COVID-19 as quickly as possible in order to trigger a qualification for leave.
What if I am sent home but I can telework?
You do not qualify for emergency leave under the EPSLA or EFMLEA if you can telework. You can telework if:
- your employer has work that you can complete from home,
- the employer allows work to be done from where the you are quarantined, and
- there are no extenuating circumstances that alter your ability to telework.
What if I am eventually diagnosed with a cold or the regular flu and not COVID-19?
The EPLSA only requires that you provide your employer with notice that you (1) have a symptom and (2) are seeking medical diagnosis to determine if you have contracted COVID-19. As such, even if your medical diagnosis test comes back negative for COVID-19, you are entitled to EPSLA leave pay, and if you were waiting on your diagnosis for long enough, pay for the time that you missed due to your symptoms before you received the results of the medical diagnosis test. However, if you test negative for COVID-19 you must return to work.
Contact Our Attorneys
If you or a loved one is an individual with serious and chronic health conditions and are at higher risk for contracting COVID-19 or if you are experiencing symptoms of COVID-19 and are worried about its effects on your job, you may have legal questions about your employment options. If you’d like to discuss options and receive legal advice, please contact Hawks Quindel, S.C.
[1] Wis. Stat. § 995.50 (am).
[2] Duncan-Watts v. Nestle USA, Inc., No. 1:19 CV 01437, 2020 U.S. Dist. LEXIS 18647, at *11 (N.D. Ohio Feb. 5, 2020)
[3] EPSLA § 5101(a)(3).