Taking an Employee’s Temperature and Cal/OSHA in the Construction Industry

03.19.2020

While the COVID-19 pandemic is evolving, employers are faced with almost daily questions for ensuring the safety and health of their employees.  While employees are being encouraged and/or forced to work at home based on the shelter-in-place orders being issued by the various counties, we still have Essential Services which must continue. 

The EEOC has issued recent guidance allowing employers to take an employee’s temperature before starting work as an initial screening.  The Los Angeles Unified School District recently implemented a policy which requires contractors to take the temperature of all workers before entering the worksite. This policy will become effective March 20, 2020.  The workers must fill out a short health assessment form asking if the worker has (1) traveled outside of the country in the last 14 days, (2) are they experiencing serious respiratory symptoms and (3) have you been in close contact with someone diagnosed with COVID-19?  The employer will use a non-contact thermometer to take the temperature and no employee with a fever in excess of 100.3 Fahrenheit will be able to access the site.  Many of the unions have also approved this or similar policies. 

Cal/OSHA does not have any specific regulation for taking an employee’s temperature and most employers do not take temperatures so this is a new “process” or “procedure” being introduced into the workplace.  There are several safety orders which may apply.  We contacted Doug Jones, Chief Cal/OSHA and Paul J Papanek MD MPH, Medical Unit, Cal/OSHA to discuss suggested practices as we are in a “gray” area for regulations.

The Aerosol Transmissible Diseases Standard (ATD) primarily covers the healthcare and related industries where workers have an elevated risk of exposure since they will be treating and working with individuals with confirmed or suspected cases of coronavirus.  The ATD probably does not apply to the construction and non-healthcare industries because the occupational exposure is no higher than exposure for employees working in public contact operations such as retail clerks and bus drivers.  Of course, this is a case by case analysis.

This Alert is directed toward the construction and other non-healthcare related entities who need to develop a policy for taking temperatures. All employers are encouraged to read the Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19).  These Guidelines provide a good overview of an employer’s obligation related to the coronavirus.

As part of the IIPP, every employer must update their IIPP for new hazards in the workplace (i.e. coronavirus) and new procedures (i.e. taking temperatures).  In summary you need to:

• Implement measures to prevent or reduce infection hazards, such as implementing the CDC recommended actions identified in the Guidelines, and.
• Provide training to employees on their coronavirus infection prevention methods including the use of Personal Protective Equipment.

From our discussions with Cal/OSHA here are some practical tips to consider since there is little formal guidance in this area.

1. Use some type of administrative control (short health assessment form) as the checklist of questions above asking if the employee has:

1. 1. Traveled outside of the country in the last 14 days,
   2. Are they experiencing serious respiratory symptoms and
   3. Been in close contact with someone diagnosed with COVID-19?

If the answer is “yes” then a more thorough evaluation needs to be performed.  If the answer is “no” then the temperature should be taken.

2. Consider some form of engineering controls such as erecting a plastic barrier which would allow the “screener” taking the temperature to stick the thermometer through a cut-out to take the temperature. Keep at least an arm’s length distance.  This will cut-down on airborne transmission.

3. Provide the screener with personal protective equipment such as gloves, faceshield, and a N95 respirator (though not mandated).

4. Provide training to the “screeners” on the process how to safely perform the screening.

These are truly extraordinary times and we attempting get updates out as soon as possible.  The guidance is not intended to answer all of an employer’s questions regarding compliance with Cal/OSHA during this fast-moving pandemic, but should serve as a good basis for crafting and implementing effective and legally-compliant policies at the present time.

Be sure check the Cal/OSHA website and CDC website for updates.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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