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Governor's Recommendation For Temperature Testing

Most employers have heard by now that during Governor DeWine’s press conference on Wednesday, he recommended that Ohio employers should immediately begin taking the temperature of employees when they arrive at work in an effort to identify anyone who is becoming ill. After the press conference, Governor DeWine clarified that if it is not feasible to take employees’ temperatures, employers are requested to require employees to take their own temperatures prior to arriving at work. Further, Governor DeWine recommended that anyone with a temperature of 100.4 or higher should self-quarantine with members of their household.

It is important to note that this is a recommendation, not a mandate or formal order. As such, employers across Ohio are not required to comply. There are however legal and public relations risks if an employer chooses not to comply. All employers should discuss the risks applicable to their particular business with legal counsel if they choose not to comply.

If an employer chooses to comply with the recommendation to take all employees’ temperatures, it is important to note that the Americans with Disabilities Act considers a temperature check a medical test. Medical tests/records under the ADA are required to be kept confidential and the temperature check should also be performed in a private area, to the extent possible. Employers may also wish to contract with a staffing company to provide nurses on site to conduct the temperature check.  If it is not feasible to check the temperatures of all employees due to the number and/or widespread location of employees, employers can adopt the Governor’s revised recommendation to require all employees to take their own temperature before arriving at work each day to ensure it is below 100.4.

Another option is a hybrid approach – adopt the alternative recommendation requiring each employee to take their own temperatures before work but then take the extra step to confirm with each employee each day that they did in fact take their own temperature and it was below 100.4.  If an employee admits that they forgot to take their temperature before work, the employer could then follow the guidelines above to take the employee’s temperature at work. This process would show a good faith attempt by the employer to comply with the Governor’s preferred recommendation while at the same time acknowledging that each workplace is different and a one size fits all approach is not always practical.

For the next 60 days, you are permitted to call the office of Auman, Mahan and Furry at (937) 223-6003 for a free legal consultation concerning any aspect of COVID-19.

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