On March 11, 2020, the Centers for Disease Control and Prevention (CDC) (along with the White House Coronavirus Task Force) issued guidance for the next 30 days for Santa Clara County, CA, and Seattle-King, Pierce, and Snohomish Counties, WA. This guidance specifically recommends that employers in these jurisdictions conduct “[r]egular health checks on arrival each day (e.g., temperature and respiratory symptom screening) of staff and visitors entering buildings.” This guidance supports the view that employers in those jurisdictions may without running afoul of the Americans with Disabilities Act (ADA) conduct such health checks — including temperature checks and respiratory symptom screening — of all employees and visitors on a daily basis.

As we noted in our earlier blog post, the ADA generally does not permit employers to make inquiries about a current employee’s medical information or status or ask employees to submit to medical examinations except in narrow circumstances. The EEOC has explained, however, in 2009 guidance relating to pandemic flu, that:

  • “If an influenza pandemic becomes more severe or serious according to the assessment of local, state, or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza.” In such a case, employers may “make disability-related inquiries or required medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.”
  • Furthermore on the specific point of temperature checks of employees, the EEOC has stated that “[i]f pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.”

Employers in locations where CDC is recommending health checks of employees and visitors should carefully review the CDC’s recommendations. Employers in healthcare settings should also review specific guidance for employers in healthcare settings for which additional and more detailed guidance has been provided, as well as the healthcare-specific recommendations contained in the March 11 guidance for the counties in California and Washington.

Employers in other high-risk geographic areas should carefully watch for further guidance from the CDC or other federal, state, or local health officials that may require or encourage similar health checks or inquiries that were otherwise potentially prohibited under the ADA as further developments may legally expand this leeway to other localities, or perhaps nationwide; for example, on March 11, 2020, the World Health Organization declared coronavirus a pandemic, and U.S. agencies may follow suit.

This is a novel and constantly evolving event that requires vigilance and flexibility. The Hogan Lovells Employment Team is available to advise on all employment-related aspects of the coronavirus response, from crafting company or office-wide policies, to handling concerns involving individual employees. Please contact one of the authors of this Alert or other Hogan Lovells employment attorneys with whom you regularly work for additional information related to the coronavirus.