For employers in essential workplaces, here is some guidance on the effects of employee body temperature screenings for COVID-19.

Can Indiana employers conduct employee body temperature screenings related to COVID-19 restrictions?

Yes, federal COVID-19 guidance allows employers to measure an employee’s body temperatures in response to the current COVID-19 pandemic. The U.S. Equal Employment Opportunity Commission (“EEOC”) cautions employers to, “be aware that some people with COVID-19 do not have a fever,”—acknowledging that the testing of employees for COVID-19 has its limitations on determining who may be contagious with the virus.

Employers still have an obligation to comply with federal laws like the Americans with Disabilities Act (“ADA”) and the Health Insurance Portability and Accountability Act (“HIPAA”) as part of an employee body temperature screening for COVID-19. Employers should make it clear that the sole purpose of any body temperature test is to help determine whether the employee may have a symptom of COVID-19, and not to assess whether the employee has some other medical condition or disability.

Employers should be aware of the relevant EEOC guidance and the legal and practical issues before engaging in any employee COVID-19 body temperature screens, for example:

• What questions may an employer ask an employee as part of any body temperature test?
• What should an employer do if an employee has an elevated temperature?
• May an employer maintain a log of the results of employee body temperature tests?
• What employer confidentiality, retention, and disclosure obligations are triggered by employee body temperature test results?

Please reach out to us for specific legal advice or with any decision-making questions you may have. We are here to help.

Do Indiana employers have an obligation to pay employees for time spent waiting or undergoing COVID-19 body temperature screenings?

Employers could face potential wage and hour claims under federal and state law if they do not compensate employees for time spent waiting or undergoing body temperature screenings. Whether an Indiana employer must compensate an employee for time spent measuring their temperature is a fact-specific question for each employer that should be discussed with an employment law attorney.

Under the federal Fair Labor Standards Act (“FLSA”), employers must pay employees for “principal activities.” Since the COVID-19 pandemic is an emerging issue, it remains unclear whether the time an employee spends waiting or undergoing a COVID-19 body temperature screen qualifies as a “principal activity” that must be compensated.  The U.S. Equal Employment Opportunity Commission guidance on COVID-19 should also be consulted as part of this inquiry.

Under Indiana law, the Indiana Wage Payment Statute, Indiana Code § 22-5-1, applies to current employees and requires Indiana employers to compensate employees, “for all wages earned to a date not more than ten (10) business days prior to the date of payment.” General Indiana Department of Labor guidance states that: “An employer must compensate employees for time spent on the job when the employee is subject to the employer’s control and direction.” Whether an employee is subject to an employer’s “control and direction” for the time he or she spends waiting and undergoing a COVID-19 body temperature screen remains an open question under Indiana law.

Courts in other states have recently decided similar questions, for example, in February 2020 a federal court of appeals held that time spent by employees in pre-shift and post-shift security screenings were compensable under the FLSA and the state’s respective minimum wage act, and a state supreme court held that post-security checks of employees were compensable under the applicable state wage laws.

Please reach out to us for specific legal advice or with any decision-making questions you may have. We are here to help.

COVID-19 Task Force

Please reach out to us for specific legal advice or with any decision-making questions you may have. We are here to help.

Barry L. Loftus
Sarah N. Dimmich