By Barbara Haga, June 17, 2020
Last month’s column addressed what to do if an employee who was reporting to your workplace refused to have his or her temperature checked. Guidance has been issued from CDC and EEOC on the topic of temperature-taking in the workplace. In the General Business Frequently Asked Questions in the section entitled “Reducing the Spread of COVID-19 in Workplaces” (updated May 3, 2020), the CDC describes use of such screenings to limit the spread of the virus. In Section B.7 of the EEOC guidelines entitled, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (dated March 21, 2020), the EEOC stated temperatures could be taken.
So, where is OPM in all of this? Very little has been published on this point on the OPM site. The Employee Relations guidance does not mention taking temperatures. OPM directs agencies to the CDC website for medical-related issues. OPM does include a short statement related to medical on the page entitled “Pandemic Information Agency Preparation.” OPM’s paragraph is entitled “Medical Evaluation Program Guidance,” and it states, “Agencies may establish periodic examination or immunization programs to safeguard the health of employees whose work may subject them or others to significant health or safety risks due to occupational or environmental exposure or demands. The new programs are established through written policies or directives. (5 CFR 339.205)”
Interestingly, OPM does not include taking temperatures in their return to work plan found here. So, what is an agency to do? Is there authority to take temperatures? We all know that the OPM regulations in 5 CFR 339 establish limitations on when agencies can conduct physical and psychiatric examinations. We usually address these regulations related to a specific individual when there is a question about whether he or she is able to perform the essential functions of his or her job. At FELTG, we have written many times about the dangers of not complying with those regulations and what happens when the MSPB gets a case where an agency has directed an examination that does not comply with those regulations. See Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012) and Georgia Harris v. Department of the Air Force, 62 MSPR 524 (1994), dismissed without opinion, 39 F.3d 1195, (Fed. Cir. 1994). In both cases, the employees were directed to undergo psychiatric examinations which were found to have been unenforceable.
However, as noted above, the OPM regulations cover other situations where agencies may need to obtain medical information. The actual text of the regulation is as follows:
Agencies may establish periodic medical examinations, medical surveillance, or immunization programs by written policies or directives to safeguard the health of employees whose work may expose them or others to significant health or safety risks due to occupational or environmental exposure or demands. The need for a medical evaluation program must be clearly supported by the nature of the work. The specific positions covered must be identified and the applicants or incumbents notified in writing of the reasons for including the positions in the program.
What would such surveillance programs typically cover? Normally such a program would apply to certain categories of employees, such as employees working in a certain area of the world, or certain types of jobs, such as nuclear workers. For example, DoD 6055.05-M, May 2, 2007 (updated August 31, 2018) entitled “Occupational Medical Examinations and Surveillance Manual” contains 82 pages of guidance regarding such screenings. The manual establishes requirements for examinations for exposure to chemicals such as benzene and cadmium and also sets requirements for evaluation for exposure to asbestos and noise, as well as for respirator use. There are specific requirements for jobs such as firefighters, police officers, and commercial drivers. The Department of State has established protocols for medical clearances for individuals in overseas government positions here.
Where does that leave us with COVID-19? This is a significant health risk that could occur in your facility. Infection is a risk for everyone in the workplace, although some job categories could clearly be a greater risk because of contact with patients in a medical setting, dealing with inmates, interacting with the public, etc. Because it is communicable, it affects not just the employee, but also the members of each employee’s household. New infections contribute to community spread, which these months of closure and social distancing were aimed at limiting. Could an agency check temperatures to limit the risk of exposure in the workplace? It would seem to me that the regulation provides for such measures.
What would need to be in place? The regulations require the need for the program to be clearly supported by the nature of the work. I would take the position that this use of temperature screening would apply to all jobs because there is a risk of spread of the virus in the workplace, whether that workplace is a hospital or an administrative office. The regulations also say that specific positions covered must be identified and employees notified in writing of the reasons for including the positions in the program. Therefore, my recommendation would be to send a notice to all employees advising them of the requirement and explaining why it is necessary, outlining your procedures for completing it, assuring them that the results will be confidential, etc.
What to Expect from the Workforce
Obviously, temperature checks are not a perfect measure. Some infected individuals may not have a fever. However, temperature checks are taking place in a lot of places these days. I fully expect to have my temperature taken when I go back to the gym and when I go to the airport again. If you are testing temperatures at your building and I am asked to come on-site to do training, then I will have a temperature check, too! There has not been a major revolt that I have heard of so far. However, that does not mean that there might not be one.
As you communicate with your unions, you might anticipate resistance from some groups. However, AFGE and NTEU have included temperature checks on their lists of what needs to be in place to return to work. In an article posted on the NTEU site dated June 4, 2020, the NTEU President suggested the Federal government could do more to protect workers by broadening testing capabilities and screening employees upon their arrival at the work site. AFGE has a return to work checklist, which includes 10 principles. Sixth on the list includes temperature checks upon arrival.
Alternatively, Fedsmill reported that the Federal Workers Alliance – representing 24 unions that form, in their words, “the core of the Federal employee labor movement” – listed their demands for returning employees to the workplace. (NAGE, POPA, IAMAW, and IFPTE are in this group). There are 11 demands, including requiring the wearing of masks, providing PPE for employees, on-demand testing by the “most reliable tests,” “immediate and thorough” reporting to employees that a person suspected of having the virus was in the workplace, etc. Checking temperatures is an obvious omission on this list. Repeating what I said last month: None of us have experience with a situation like this. Please keep sharing your questions/issues. We can get through this more successfully if we put our heads together! Haga@feltg.com
[Editor’s note: The EEOC has also released guidance on taking temperatures. We’ll discuss that during the virtual training EEO Challenges in a COVID-19 World: Returning to Work During a Pandemic on June 30.]