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Temperature Checks At Businesses: Sued If You Do, Sued If You Don’t

This week I had to go into a hospital to take a deposition. The required a temperature check for me to enter.  First, the irony of a medical facility being worried that I might have a fever before I enter.  I really can’t wait until it is 100 degrees, 80% humidity, and everyone is running hot.  Nevertheless it made me ponder, does the ADA create legal risks should a business screen those who enter the premises for fever using some method such as a contact‐​free temperature gun. (Amazon announced last month that it was checking more than 100,000 employees a day this way, and checks at store entrances are familiar in some Asian countries.)

Just so you know I am against legislation to protect businesses from lawsuits related to COVID-19.  Keep in mind that I own a few businesses.  The gist of its argument is that we already have a litigation system under which “liability is not likely to present a huge problem” or pose “burdensome difficulties” for businesses that “take reasonable action to keep their customers safe.” We don’t have to make law for everything that happens.There are well over 500,000 rules, laws, regulations from just our federal system.  Below is a graph showing only 1995-2016.

Laws vs agency rules and regulations.

But how do we identify in hindsight a business whose safety efforts have fallen short of what is reasonable?

A business that might be considered to have properly reopened can still find itself liable to customers for failure at the level of implementation of whatever safety protocols are required. …. what if a reasonable business would do more, such as taking the temperature of each customer as they enter the business?

In sum, then, if someone sues you claiming to have contracted the virus at your business establishment, and their lawyer’s main theory is that you should have been doing front‐​door temperature checks the simply question is, ‘was that the business standard in your community?’

Meanwhile, the American Civil Liberties Union has issued a new report that is strenuously critical of temperature‐​sensing technologies as a screen against contagion in public places, even when done by businesses on private property.

The ACLU report makes much of various facts that hardly anyone disputes — temperature sensors are far from ideally accurate, some people return “hot” results who do not have COVID-19 while others who do have Covid are not running a fever, and so forth. The argument for sensors has never been that they are perfect, but that by detecting at least some potentially contagious arrivals, they shift the odds and thus reduce overall spread of the disease in conjunction with de‐​crowding, mask use, and other measures. The report concludes that temperature sensing should go forward only if public health authorities affirmatively call for its use, and it flags possible theories, from data privacy to disparate racial impact, by which lawyers might trip up unwary businesses that go forward with it absent such a mandate.

The final question is: HIPAA.  Is the collection of temperatures and the possibility of your illness protected health information?  If it is, do you have the correct systems in place not to violate the Federal requirements of individual health information?

If you or your business has questions regarding this or any other need – give Goldfinch Winslow a call.

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