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.

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