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Refusal of temperature checks- Legal or not?

Riverfamlee

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So we just implemented temp checks for everyone at work. Its the quick infrared forehead scan. Anyways, we had a guy refuse last night based on this: He stated we do not have a right to his medical records, its illegal in California, its unconstitutional. I just had my guy kick it up to HR and Legal (haven't heard back yet) but I am curious on what the RDP peeps think about this. On one hand it could be viewed as a condition of employment and on the other hand we are not Doctors to make a determination on when to send someone home.

Mods-Fell free to move, if this is not the appropriate forum
 
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lbhsbz

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So we just implemented temp checks for everyone at work. Its the quick infrared forehead scan. Anyways, we had a guy refuse last night based on this: He stated we do not have a right to his medical records, its illegal in California, its unconstitutional. I just had my guy kick it up to HR and Legal (haven't heard back yet) but I am curious on what the RDP peeps think about this. On one hand it could be viewed as a condition of employment and on the other hand we are not Doctors to make a determination on when to send someone home.

Mods-Fell free to move it this is not the appropriate forum
As non invasive and simple as it is, I can’t see why he won’t just do it. Would I like it?...no...but I would do it because I’d prefer to work right now. Give him the alternative of going to a local medical facility (clinic, urgent care, whatever) and having the procedure performed there, then he can clock in 3 hours later when he gets back to work.
 

Sleek-Jet

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Employers can put all sorts of conditions on employment, such as random drug tests and such. I would say as long as the employer isn't singling him out and isn't announcing the results HIPA laws aren't being violated.

He is free to not be employed if he so chooses as well.
 

Boat 405

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Less invasive than a drug test. I don't see a problem
 

HGP3

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I agree with others. I feel like it is on par with a drug test. So long as it is in your employer's policy.
 

84miller

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See what legal says. However it appears you are insuring or attempting to keep all your employees healthy and you business up and running. That being said, the guy is not that concerned about his fellow employees and your business. Remember it down the road, if in CA, you can terminate a employee without cause. If legal comes back and says you can terminate now, do it.
 

mesquito_creek

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Employment relationships are presumed to be “at-will” in all U.S. states except Montana.

At-will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.

At-will also means that an employer can change the terms of the employment relationship with no notice and no consequences.

With 30 million unemployed and ready to replace him, you do the math....
 

Icky

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Everywhere we've been going lately requires it to enter their facilities. If you don't want to submit to it, stay home simple as that. Work is voluntary during all of this, if you want to work these are the conditions
 

MeCasa16

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I don’t have the legal answer, but logically, it seems it should play out like this;

You aren’t asking for his medical records or any information protected by HIPA. You are gauging his current health status to give you an indication if it is safe for him and his co workers to carry out the duties of his job. No different than subjecting them to an alcohol or drug test to find out if they have the capacity to carry out his or her job.

The critic will say, you only have the right to give alcohol and drug tests based on a company policy, and it may be worth changing your company policy to include temperature checks.

I have no idea how this will play out for you in California. Common sense in none too common. Best of luck. Take comfort in knowing you won’t be alone in this fight if it should escalate. Many states require temp checks to enter when you land at an airport rIght now.


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hallett3

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I know in some work places they are making employees sign a written policy by order to have their temperatures checked before starting there shift. If refusal you are sent home.
 

Singleton

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Condition of employment. 100% legal. Nothing is being maintained, it just a point in time check. Just wait until you see what get rolled out at airports

One of the past companies I worked for, you had option to take health exam. If you were healthy your health insurance was cheaper (healthy employees saved over 200 a month). If you refused you paid the full employee portion. I worked the audit with legal and it was 100% legal in CA to do this.
 

Bobby V

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We just ordered a couple infrared temp guns. Some of our GCs are requiring us to do daily checks before we can go on the jobsite.
 

Blue

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No HR advise here but honestly I can relate with him simply based how tired some people are of this shit. I would probably say go pound sand, people can be infected/contagious for weeks without symptoms so what are you stopping exactly? Not being a shit stirrer I'm just soooo over this shit. That being said if you got someone sick from yore crew infecting each other there could be legal issues??? Once again why I'm over this shit lets just go to fucking work already
 
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rivermobster

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So we just implemented temp checks for everyone at work. Its the quick infrared forehead scan. Anyways, we had a guy refuse last night based on this: He stated we do not have a right to his medical records, its illegal in California, its unconstitutional. I just had my guy kick it up to HR and Legal (haven't heard back yet) but I am curious on what the RDP peeps think about this. On one hand it could be viewed as a condition of employment and on the other hand we are not Doctors to make a determination on when to send someone home.

Mods-Fell free to move, if this is not the appropriate forum

Found this...

 

rivermobster

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I'm starting to understand why some business have shut down completely. It would take a team of lawyers to figure all this out!

Cheaper to close than deal with the lawsuits that could come from just one mis step...

 

Tooms22

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Here's what's funny:

1) California is super employee friendly. Hell, it's hard to even be an independent contractor here anymore.

but...

2) They also love the "stay at home, listen to the government, save every last life, this a pandemic."

So, if I know California's behavior and this would normally be an issue here, the courts will say it was a pandemic and necessary for the safety of all citizens. I highly doubt a court would label temperature check illegal after Newsom, allegedly within his power, shut down 95% of the business in the state. But CA hypocrisy is hard to follow.
 

Justsomeguy

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I have not done the research, but as someone who at one point practiced in employment law and a discussion with the managing partner at the firm i use to work for. We do not think it would be an issue on a california employment law basis. Any constitutional argument would be tough in my opinion, but I am in no way a constitutional law attorney or specialist. But as I see it no state action, no protected class.

Now if you take the temp and it's wrong, they come in and infect everyone. Might have some liability issues there.
 

PaPaG

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He sounds like he is not a team player and does not give two craps about his fellow employees...wait for HR to give you the green light then implement a company policy that everyone entering your facility must be temp checked when entering your facility. Anyone that refuses will not be permitted to enter. He will of course file for unemployment to get the extra funds that are being given with unemployment and you know sure as shit he is one of those POS' that would rather get free money vs work and this was his plan all along...
 

pronstar

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I can see both sides of this one.

At the end of the day, this comes to mind:
Constitution of United States of America
4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Is taking temps unreasonable?
Perhaps...or perhaps not.

If my paycheck depended on it, I’d prolly go along with the program.


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Justsomeguy

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I can see both sides of this one.

At the end of the day, this comes to mind:
Constitution of United States of America
4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Is taking temps unreasonable?
Perhaps...or perhaps not.

If my paycheck depended on it, I’d prolly go along with the program.


Sent from my iPhone using Tapatalk Pro
Your employer taking your temp is not state action. 4th amendment wouldnt apply in that situation.
 

monkeyswrench

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Could you "furlough" said employee? It could done so as to "protect their privacy"?
 

Justsomeguy

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Unless your employer is the government. Then that gets more in the weeds of constitutional conversation.
Your employer taking your temp is not state action. 4th amendment wouldnt apply in that situation.
 

Sleek-Jet

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Unless your employer is the government. Then that gets more in the weeds of constitutional conversation.
Even then it isn't so "sticky", you have the right not to work for the government.

I think this only gets into 4th amendment territory if the government mandates that all employers perform the test. Then it is a question of constitutionality.
 

Justsomeguy

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Even then it isn't so "sticky", you have the right not to work for the government.

I think this only gets into 4th amendment territory if the government mandates that all employers perform the test. Then it is a question of constitutionality.
In the temper check specific scenario I think you are correct. On a general basis and the 4th amendment, I honestly do not know. But on a general basis, I am thinking about the 1st amendment and freedom of speech, the rules are different when the government is in the role of employer. Whether or not that applies to the 4th word require further research on my part.
 

dribble

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The bottom line is that conditions of employment do not fall under rights guaranteed in the Constitution. At my state agency we we not allowed to speak with the media without management and Public Information Office approval. We had to pass a medical exam to get the job. Employees that drove vehicle transporters were subject to random drug testing, and don’t even think about bringing a gun to work.
 

Riverfamlee

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We still have a call coming up to discuss, but this is what legal is saying:

It is a company policy that he is outright refusing to comply with. We can discuss on our call, but my thoughts are that we:

  • Ask him to explain to us why he is refusing;
  • Explain to him that this is a company policy like any other policy (ex. the dress code) and he is expected to comply;
  • That such testing is recommended by the CDC and approved by the EEOC and we’ve implemented it in order to protect the health of our employees and anyone they come into contact with;
  • If he has a religious objection – it needs to be referred to HR
  • If he has some other legitimate objection (I cannot really think of any); you can send him know and let him know we’ll consider his objection
  • If he has no rationale for not being screened, he can be given the choice to comply with the policy and return to work or to go home without pay (we will pay any reporting time pay due in CA);
  • If he comes to work again and refuses to be screened, I would lean toward termination based on insubordination.
 

Justsomeguy

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I still think a religious argument would be difficult on a constitutional basis. How is a company wide implementation, and likely a growing implementation throughout the country, a discriminatory act on the basis of religion? I guess you would still be inclined to try and reasonably accommodate any such religious reason one may have. Nonetheless good to CYA and implement.
 

SJP

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This is becoming SOP for a lot of places (Temp Checks). Refusing will be akin to not wanting to go thru TSA security at an airport like it or not.
 

TCHB

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If you want to get into certain areas it will be required. Send the person home with zero pay.
 

SCV2RVR

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Kind of reminds me when I used to work in a hospital (RN). We given the choice of getting a flu shot or not. If you refused it you must wear a mask for the entire 12 hour shift while in the hospital for the entire flu season. I'm not a big "get a flu shot" guy, but sure got one so I didn't have to wear a mask all day.
 

Riverfamlee

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This is becoming SOP for a lot of places (Temp Checks). Refusing will be akin to not wanting to go thru TSA security at an airport like it or not.
Yep, agree. I think we will start seeing this more and more as things open up. Airports and amusement parks come to mind as they try and get things going. How long will it continue? Who knows
 

boatpi

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This would be a condition of employment. Something like proper clothing, or grooming standards. the DO have the right to do this as it is one way to detect if you may have CV 19. So do not submit, then you do not need to work here. Simple as that. Very foolish doing this, perhaps this person is some constitutional guy, if that is the case, you will loose almost every time in an issue like this.
 

EBT531

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On the news they were showing that airports etc. are considering infrared cameras to check peoples temps and AZ businesses are jumping on board as well. How can you refuse that? I think the bigger question is what is too high of a temp? Esp in AZ summers when its 115 outside, your temp will be higher anyway. Then consider my wifes temp is consistently 1.5-2 degrees higher than mine without being sick so will she be allowed in or not?
 

monkeyswrench

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Well then can he collect unemployment PLUS another $600.00 per week?
With humans these days, that could be his goal...never underestimate people's want of free crap.


@Riverfamlee , I would not bring up the religious basis, as it's hard to argue, and an easy excuse. Had a guy claim he was "praying towards Mecca"...was passed out sleeping. This day and age you can't fight the prophet...
 

mesquito_creek

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Well then can he collect unemployment PLUS another $600.00 per week?
I don't think that he will qualify for unemployment because he voluntarily walked off the job. When he applys, the employer response would say he had a job, all he had to do it walk through our temperature screening...
 

SKIDMARC

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We still have a call coming up to discuss, but this is what legal is saying:

It is a company policy that he is outright refusing to comply with. We can discuss on our call, but my thoughts are that we:

  • Ask him to explain to us why he is refusing;
  • Explain to him that this is a company policy like any other policy (ex. the dress code) and he is expected to comply;
  • That such testing is recommended by the CDC and approved by the EEOC and we’ve implemented it in order to protect the health of our employees and anyone they come into contact with;
  • If he has a religious objection – it needs to be referred to HR
  • If he has some other legitimate objection (I cannot really think of any); you can send him know and let him know we’ll consider his objection
  • If he has no rationale for not being screened, he can be given the choice to comply with the policy and return to work or to go home without pay (we will pay any reporting time pay due in CA);
  • If he comes to work again and refuses to be screened, I would lean toward termination based on insubordination.

If it is a company policy he must comply or he can be terminated.

Also you are an "At will employer" so you can terminate without reason. But you should always CYA.

Also, if he is giving you problems about this, get rid of him now, he will likely cause bigger problems down the line. You have a window of opportunity with him not complying with company policy, TAKE IT! I know from experience.
 

Justsomeguy

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With humans these days, that could be his goal...never underestimate people's want of free crap.


@Riverfamlee , I would not bring up the religious basis, as it's hard to argue, and an easy excuse. Had a guy claim he was "praying towards Mecca"...was passed out sleeping. This day and age you can't fight the prophet...
The rastafarian religion believes in smoking marijuana as a sacrament of their religion. Was the ban on marijuana an infringement of their religious liberty? No, its ban was applicable regardless of religious affiliation or belief. It was done for an overarching societal health and safety issue. I would apply that same logic here.
 

RIVERDAZE

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Cal Chamber legal in the Alert mag said that taking employee's temperature is currently legal during Covid pandemic. if Union, it may be different
 

rivermobster

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Yep, agree. I think we will start seeing this more and more as things open up. Airports and amusement parks come to mind as they try and get things going. How long will it continue? Who knows
Sadly, until the vaccine is widely available. So probably until this time next year, hopefully. :(
 

LHC Kirby

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Employment relationships are presumed to be “at-will” in all U.S. states except Montana.

At-will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.

At-will also means that an employer can change the terms of the employment relationship with no notice and no consequences.

With 30 million unemployed and ready to replace him, you do the math....
a lot of that .... goes away once you contact your Union representative.....


regarding the temperature dude - give one more chance to get to work after the test.. if he refuses tell him to go home until he will... no pay.
 
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