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It's become broadly understood by now that restaurants and stores have an absolute right to require that customers wear face masks.
But what about requiring that customers submit to having their temperatures taken as a condition for entrance?
The answer is that businesses apparently do have a right to do that, much as they can require you to wear a shirt and shoes. The reality, however, is that not many have taken the step of taking customers' temperatures. They would need to train and dedicate staff to take the temperatures, and they'd run the risk of losing business to less conscientious competitors.
And then there are other legal issues, because when we're talking required temperature checks we're talking collection of personal data.
Prior to March 21, employers were prohibited from requiring employees to have their temperature taken when clocking in because that would have been considered an “impermissible medical inquiry" under the Americans With Disabilities Act. On that day, however, the U.S. Equal Employment Opportunity Commission issued rules proclaiming that the coronavirus pandemic is a “direct threat" to people's health, and that employers have the right to check employees' temperatures.
There's not been much guidance on taking customers' temperatures, but some restaurants and grocery chains see it as a necessary step in reducing the risk of contagion.
Most recently, Walt Disney World announced in late July that diners at its table-service restaurants in Florida must receive a temperature check upon entry. Anyone with a temperature of 100.4 or higher will not be allowed in.
LaBonne's Markets, a small Connecticut grocery chain, has been taking customers' temperatures since April. Around the country, many restaurants have been requiring it. And in Greenburgh, New York, the town government began requiring groceries and pharmacies to conduct customer temperature checks.
Clearly, taking temperatures is not a cure-all. Many carriers of the virus are pre-symptomatic with normal temperatures, and an elevated temperature isn't necessarily an indicator of COVID-19. Required temperature taking is seen as one part of a broader effort, including required masks and social distancing, to reduce risk.
For restaurants, grocers, and others who are thinking of doing it, there are legal aspects to consider. For one thing, if they are taking customers' temperatures, they must be sure they're not doing it in a selective fashion. The rule should apply equally to everyone.
When a business takes a customer's temperature, they are essentially gathering personal data, and state laws vary in this area. The most stringent of these laws, the California Consumer Protection Act (CCPA), went into effect on Jan. 1, giving individuals the right to keep personal medical information private.
The emergence of the coronavirus and the need for contract tracing has posed an immediate challenge to CCPA. If businesses are taking customers' temperatures and merely turning away those who register over 100.4 degrees, isn't that a wasted opportunity for contact tracing?
In terms of public health and legal liability, this is an interesting and difficult question. Attorney Anne Zimmerman recently explored it in an article for Voices in Bioethics, a Columbia University journal.
Retailers and grocers are now operating in a “government vacuum," not quite knowing what to do, she wrote. Without any government directives, “companies should agree not to store or use customer medical information, despite the data's valuable role in public health. … The data is essentially wasted in the absence of any reporting requirements."
Still, companies that do it would appear to be taking a responsible step. If Walt Disney wants to take your temperature, it's got to be OK, right?