California businesses are feeling the pressure to keep their customers and employees safe from the dangers of the COVID-19 coronavirus and protect themselves from liability for potential violations of the California Consumer Privacy Act (CCPA). Additional up to date information can be found on the Centers for Disease Control (CDC) website to help businesses navigate these unprecedented times.

Is a Business Subject to CCPA Requirements?

CCPA only applies to businesses if they are:

  • Retaining the temperature information;
  • For purposes unrelated to primary job function; and,
  • Intend to pass the information along to a third party for any reason.

In that case, the employee must be given an opt-out notice and provision for choosing to decline to participate in the gathering information portion of the process if they so choose. More information on temperature screenings and the possibility of CCPA violations can be found here.

Consent and Other Best Practice

Merely taking a temperature does not require approval, but currently, California does not have a legal directive requiring the taking of temperatures as it does with wearing masks. Therefore, a business might want to obtain written permission to take temperatures from its employees before implementing a policy.

Best practices to avoid possible liability include:

Non-discriminatory testing procedures. The CDC recommends either testing all employees or, if that is not feasible, making it clear that testing is being done only where social distancing is not possible, such as among warehouse or assembly-line personnel. At no time should the screener be allowed to "select" those to be tested. The screener, if possible, should be a nurse or other medically trained person, such as an EMT.

If employees are required to undergo screening before clocking in, that time may need to be compensated under FLSA or other labor laws. The CDC cautions paying the time may be cheaper than litigating the few minutes under the contract. The Americans with Disabilities Act (ADA) privacy concerns are implicated in this type of screening, and privacy must be carefully considered. The CDC advises treating this as any other type of medical testing and screening.

Before Implementing Company-wide Testing:

Employees should be notified in writing before a business begins checking temperatures at the door. Employers can also contact a lawyer to protect both the employer and the employee's rights in drafting a notice to ensure any concerns are met before any additional steps are taken.

The blog posts provided on this website do not, and are not intended to, constitute legal advice; instead, all information, content, and materials available on this blog are for general informational purposes only.