Just a few short months ago, many would have found the idea of mandatory temperature screenings outrageous. But what was unthinkable then, may be the “new normal,” in our COVID-19 world.
States and local governments have thus far adopted a number of measures to contain the pandemic—including stringent shelter-in-place orders and face-covering mandates. And as various jurisdictions across the country now plan for a phased re-opening of their local economies, authorities are faced with a new challenge—determining how to minimize the risk of the virus spreading.
The Center for Disease Control and Prevention (CDC) and the Equal Employment Opportunity Commission (EEOC) —the agency tasked with enforcing anti-discrimination laws—have permitted businesses to conduct temperatures checks at the workplace. But what does this mean for multi-office buildings and co-working spaces? Can commercial and residential landlords now do the same? With so many unknowns, there is an urgent need for further guidance as Americans prepare to return to work or otherwise go about their daily lives. And the questions that need immediate clarification include (but are not limited):
- Is it the responsibility of the landlord/owner to screen users and visitors?
- What are the privacy issues related to the temperature-taking process?
- What protocols must be followed if recording and storing that kind of data?
- Should tests be conducted at the entrance/building lobby (visible to all)?
- Should landlords enforce social distancing guidelines in common areas, such as hallways, stairways, and elevators?
- What about requiring all tenants, including their employees and invitees, to wear masks and other protective gear?
- Can building owners deny entry to persons exhibiting a fever or other COVID-19 symptoms?
- Who pays for cleaning costs if a tenant’s space is somehow contaminated?
It is imperative that these questions be carefully considered, and any possible legal liability or exposure be addressed, before any policy directives are issued.
Additionally, even if only employers, and not landlords, are authorized to conduct these screenings, there are still concerns regarding privacy rights and other related considerations. While public health officials have confirmed that health screenings during the midst of the pandemic would not violate the Americans with Disabilities Act (ADA), such determinations do not necessarily have the force (or support) of law. Thus, prior to implementing such tests, it is recommended that employers review the standards and guidance issued by the CDC and local governments regarding screening processes and protocols. And, of course, readers are strongly urged to confer with counsel to seek a formal opinion.
If you are an owner, tenant, or someone associated with a tenant, and have questions about your rights, or feel your rights have been violated, please reach out to a member of our Civil Rights Group. If you, as a tenant/tenant-affiliate, have been wrongly denied access to your commercial or residential space, please consult with members of our Real Estate Group to explore your available options.
Now more than ever, Newman Ferrara LLP remains committed to standing by your side—at an appropriate social distance, of course.
PLEASE NOTE: The foregoing was NOT intended as an exhaustive analysis of the topic, as an array of legal and practical considerations, beyond the scope of this post, apply. Furthermore, as COVID-19 related developments change daily, this must be viewed as an exceptionally fluid situation. Thus, prior to taking any action, you are urged to confer with an attorney to ascertain whether there has been any change that would impact any recommendations made, or whether there are discrete facts or developments, unique to your situation, which would warrant taking a different tact or course.