It is now widely understood that restaurants and stores have the absolute right to require customers to wear face masks.
But what about requiring customers to submit to temperatures as a condition of entry?
The answer is that companies clearly have a right to do so, as much as they can require you to wear a shirt and shoes. However, the truth is that not many have taken the step of measuring customers’ temperatures. They will need employee training and dedication to withstand temperatures, and they may risk losing business to less aware competitors.
Then there are other legal problems, because when we talk about the required temperature checks, we are talking about collecting personal data.
Federal Rules for Checking Temperatures During a Pandemic
Prior to March 21, employers were forbidden from requiring employees to take their temperature when registering for work because that would have been considered an “impermissible medical inquiry” under the Americans with Disabilities Act. However, on that day, the US Equal Employment Opportunity Commission issued rules declaring the coronavirus pandemic a “direct threat” to people’s health, and that employers have the right to have employees’ temperatures checked.
There hasn’t been a lot of guidance on taking customers’ temperatures, but some restaurants and grocery chains see this as a necessary step in reducing the risk of infection.
Recently, Walt Disney World Announced in late July Diners at their Florida table service restaurants must have a temperature check upon entry. No one with a temperature of 100.4 or higher will be allowed in.
Labon Markets, A small Connecticut grocery chain, has been measuring customers’ temperatures since April. all over the country , Several restaurants Been requested. And in Greenburg, New YorkCity government has begun requiring grocery stores and pharmacies to conduct customer temperature checks.
Personal data and other legal considerations
Taking temperatures is clearly not a comprehensive treatment. Many carriers of the virus have no prior symptoms with normal temperatures, and a high temperature is not necessarily an indicator of COVID-19. Taking the required temperature is seen as part of a broader effort, including required masks and social distancing, to reduce risks.
For restaurants, grocery stores, and others who are considering doing this, there are legal aspects to consider. For one thing, if they are measuring customers’ temperatures, they must ensure that they are not doing so selectively. The rule should apply equally to everyone.
When a company takes a customer’s temperature, it is essentially collecting personal data, and state laws differ in this area. The most stringent of these, the California Consumer Protection Act (CCPA), went into effect January 1, giving individuals the right to keep personal medical information private.
The emergence of the Coronavirus and the need to track contracts posed an immediate challenge to California’s Consumer Privacy Protection Act. If companies are measuring customers’ temperatures and only turning away from those who score more than 100.4 degrees, isn’t this a missed opportunity to track contacts?
In terms of public health and legal liability, this is an interesting and challenging question. Attorney Ann Zimmerman recently explored this in an article for Voices in BioethicsColumbia University Journal.
She writes that retailers and grocery stores are now operating in a “government vacuum,” not knowing exactly what to do. Without any government directive, “companies must agree not to store or use medical information for clients, despite the data’s valuable role in public health.… Data is mainly wasted in the absence of any reporting requirements.”
However, companies that do appear to be taking a responsible step. If Walt Disney wanted to take your temperature, that should be fine, right?