KBS Reference Desk: Medical Screening and the Fourth Amendment

Q:        The District has implemented mandatory medical screening—in the form of a “no-touch” temperature gun—of employees who enter the administration building in an effort to prevent the spread of COVID-19.  The Equal Employment Opportunity Commission recently issued guidance suggesting that such testing is permissible, but a custodial employee has alleged that the screening “violates his Fourth Amendment rights.” Is he correct?

A:        No. Using a no-touch temperature gun to screen for COVID-19 would likely be considered reasonable under the Fourth Amendment.

Subjecting an employee to mandatory medical screening is certainly not without risk; however, such risk may be minimized if the screening is conducted in accordance with established court authority, as well as federal, state, and local guidance. While case law addressing medical screening in the pandemic context is virtually nonexistent, courts have assessed medical screening in other frameworks—such as mandatory drug testing of employees or students—that provide guidance to assess risk and draw best practices.

Ordinarily, to be reasonable under the Fourth Amendment, a search must be based on individualized suspicion. However, courts have permitted suspicionless drug testing of employees when the employer has established a “special need” to conduct the testing. Similarly, courts have permitted random drug testing as a condition of student participation in athletics. In either case, courts balance the individual’s privacy interests against the promotion of legitimate and/or compelling government interests. When the drug testing is deemed reasonable, a central theme justifying such testing is safety—whether it be safety concerns for the individual being tested, others around him, or both.

In the above hypothetical, any Fourth Amendment challenge by the janitor would be overcome by the balancing of interests in favor of the school district. The District’s interests are both legitimate and compelling; that is, the screening is being conducted to prevent the spread of COVID-19. Given the virus’s highly contagious and deadly nature, the screening in every sense has the potential to prevent suffering and save lives. Moreover, the privacy intrusion is minimal—the District is using a no-touch temperature gun to determine whether the employee has a fever. Under these circumstances, the testing is likely to be considered reasonable for Fourth Amendment purposes.

The next logical extension of a temperature gun is a requirement for COVID-19 testing prior to return to duty. While, again, analysis of the Fourth Amendment in a pandemic setting is novel, application of existing case law to our current health crisis would bend in favor of employment policies that require COVID-19 testing of all employees (as opposed to just using a temperature gun), so long as 1) the testing is conducted using low intrusive methods (for example, a mouth swab instead of a Q-tip up the nose); 2) the testing takes place in a private setting (such as a private classroom instead of a crowded hallway or cafeteria); and 3) the results are disclosed only to those who “need to know.” Also, it is more favorable if the test used by the District only detects COVID-19, as opposed to detecting a variety of information about the subject’s body, such as ingested substances like drugs or alcohol. For specific questions or additional information, please contact your local school attorney.

Related Posts

Recent Articles

KBS Reference Desk: On Call Employees over 4th of July Holiday
July 1, 2022
KBS Reference Desk: Employment of Students
June 24, 2022
KBS Reference Desk: TOMA Social Gatherings Conventions
June 17, 2022
KBS Reference Desk: Volunteers Under Guardian Plan
June 10, 2022
KBS Reference Desk: DOI and Certification
June 3, 2022
KBS Reference Desk: FML Leave Over the Summer
May 27, 2022
KBS Reference Desk: Decrease in Compensation
May 20, 2022
KBS Reference Desk: Participation in Graduation Ceremonies
May 13, 2022
KBS Reference Desk: Temporary Custodians of Record – TPIA
May 6, 2022
KBS Reference Desk: Driving Students to Polls
April 29, 2022
KBS Reference Desk: Authority to Create New Position
April 22, 2022
KBS Reference Desk: Booster Club Raffle
April 15, 2022
KBS Reference Desk: Returning a Teacher to Probationary Status
April 8, 2022
KBS Reference Desk: Termination of Probationary Contract While On Leave
April 1, 2022
KBS Reference Desk: Long COVID and Special Education Referrals
March 25, 2022
KBS Reference Desk: Pay During Weather Closure
March 18, 2022
KBS Reference Desk: Nepotism
March 11, 2022
KBS Reference Desk: New SBOE Rules on Contract Abandonment
March 4, 2022
KBS Reference Desk: Web Accessibility
February 25, 2022
KBS Reference Desk: Political Advocacy Prohibitions
February 18, 2022
KBS Reference Desk: Pay During Weather Closure
February 11, 2022
KBS Reference Desk: House Bill 2581 Procurement Updates
February 4, 2022
KBS Reference Desk: CDL Waivers for Bus Drivers
January 28, 2022
KBS Reference Desk: Interstate Travel Liability and Travel Forms Best Practices
January 21, 2022
KBS Reference Desk: Updated Stay at Home Periods
January 14, 2022