Attorneys - Thoughts on Mandatory Temperature Checks To Enter Business (1 Viewer)

[Anthony Martino]

Know we've got a number of attorneys on here, wanted to see what you all think about businesses requiring customers (or employees) to have their temperature checked before being permitted to enter.

Ignoring the fact that someone could not show symptoms and still be carrying it (or be sick but not have a fever), is this a violation of an individuals right to medical privacy? Typically the people conducting these tests will be security staff or front-line staff who are not necessarily medically trained. It's doubtful there will be any privacy for the individual getting their temperature taken and then turned away in front of a crowd of other customers.

I just feel like businesses are going to implement something that will only provide an illusion of protection, while opening themselves up to lawsuits, but wanted to get some expert opinions.

 

[JMC9389]

Compulsory not an attorney disclaimer but....

I believe that if the governor of your state mandates the act to do so as a public health requirement, you're SOL. While HIPAA is not waived, certain provisions of privacy policy outlined by HIPAA may be during a "national public health emergency"

https://www.hhs.gov/hipaa/for-profe...ational-or-public-health-emergency/index.html

 

[Highli99]

I told our CEO he can take my temperature as long as I can pick the method. And I insist on accurate temps.

 

[Colquhoun]

this may be of help. my attention span gave out in the second paragraph.
https://www.natlawreview.com/articl...medical-information-questions-during-covid-19

 

[slisk250]

I don't know how they do it there. In this country I live in the mid east they don't need to get anywhere near you. There is armed security and if you are high according to their scanners, you get pulled off to the side for one minute and then try again.

...and over here there isn't even a question of compliance!

 

[Eloe2000]

Not a lawyer, but can’t businesses refuse you service for any reason they want other than for “protected class” reasons? So they can refuse service if you do not voluntarily surrender a privacy right to your temperature.

Not that I think temp checks accomplish much.

 

[Anthony Martino]

Not a lawyer, but can’t businesses refuse you service for any reason they want other than for “protected class” reasons? So they can refuse service if you do not voluntarily surrender a privacy right to your temperature.

Not that I think temp checks accomplish much.

IF this would be a violation of your legal rights (protected medical records/info), then I can't see how they can refuse service based on you refusing to give up your legal rights. But I'm not an attorney, which is why I'm asking.

 

[WedgeRock]

Businesses can require you to surrender your second Amendment rights before entry... How is that any different?

 

[Eloe2000]

IF this would be a violation of your legal rights (protected medical records/info), then I can't see how they can refuse service based on you refusing to give up your legal rights. But I'm not an attorney, which is why I'm asking.

They are violating your privacy or any other legal right. They would be reuesting you surrender such right voluntarily. If you refuse then they can deny you service as long as it is not a protected class issue I believe.

 

[Eloe2000]

Businesses can require you to surrender your second Amendment rights before entry... How is that any different?

Perfect analogy I believe.

 

[Anthony Ferguson]

I don't see an issue. They are not "discriminating" against you for any constitutionally protected reason: race; age; nationality; sex; etc.

 

[Anthony Martino]

Businesses can require you to surrender your second Amendment rights before entry... How is that any different?

I don't believe a restaurant can legally bar you from entering if you're wearing a (trump/Obama) shirt, for instance though?

 

[Eloe2000]

I don't believe a restaurant can legally bar you from entering if you're wearing a (trump/Obama) shirt, for instance though?

they can. Not that it’s a good idea. It’s a horrible one, but legally they can.

As long as it’s not a protected class issue:https://en.m.wikipedia.org/wiki/Protected_group

 

[Anthony Martino]

I don't believe a restaurant can legally bar you from entering if you're wearing a (trump/Obama) shirt, for instance though?

Looks like I'm wrong, mostly (except in a few rare instances where it is protected)

https://www.freeadvice.com/news/Lit...ainst-customers-who-wear-political-attire.htm

 

[Anthony Ferguson]

Not a lawyer, but can’t businesses refuse you service for any reason they want other than for “protected class” reasons?

This is essentially a correct statement of the law. It is entirely permissible to "discriminate" so long as the basis for the "discrimination" is not prohibited.

 

[WedgeRock]

Not entirely true. If discrimination has an unintended consequences that creates an unfair treatment of a protected class, it can be ruled as unconstitutional.

For example, say a chain restaurant in a certain state refuses to allow concealed carry in their restaurants by licensed permit holders. Having a permit is not a protected class, so the practice is not unconstitutional on its face. But if 98% of permit holders are from a protected class (say race), arguably, the practice could be ruled unconstitutional because in application, it has a disporportionate affect on a protected class.

That's an oversimplification to emphasize the point.

 

[cgpilot]

They check my temperature at work, but it’s a joke. I often have the a/c blowing on my face, when it’s already cool outside, right before they check it. Today after the scan he said “88 degrees, looks fine.”

 

[Highli99]

they can. Not that it’s a good idea. It’s a horrible one, but legally they can.

As long as it’s not a protected class issue:https://en.m.wikipedia.org/wiki/Protected_group

Anthony i don't want to upset you here, but as i remind my director of HR everytime I give her our job descriptions and she protests my requirement for auditors at least 6 feet tall, "HIGHT IS NOT A PROTECTED CLASS!!"

 

[Anthony Ferguson]

LOL. However, The Munchkins would have a legal claim under the ADA!

 

[Venturalvn]

Not a lawyer but my only question about this question is - who gives a shit?

 

[Anthony Martino]

Not a lawyer but my only question about this question is - who gives a shit?

Well obviously the other people who responded, you fucking dick

 

[Venturalvn]

Well obviously the other people who responded, you fucking dick

Everyone's posting cuz it's a joke of a question. You don't want to go in to a place because they want to put up a safeguard for their customers? Nobody will care to be missing you.

Not saying anything about you personally because I don't know you personally, but it's a simple concept. You don't like it? Don't go inside.

 

[cgpilot]

I didn’t post because I thought it was a joke of a question. @Anthony Martino is making light conversation on a topic that interests him. Fairly simple.

 

[Anthony Martino]

Everyone's posting cuz it's a joke of a question. You don't want to go in to a place because they want to put up a safeguard for their customers? Nobody will care to be missing you.

Where did I say I wouldn't go into a business that has implemented these measures?

I stated I believe it's pointless because it won't stop someone who is not showing symptoms from getting inside and spreading the virus, it just creates an illusion of protection

And given you have non-medical staff "confirming" someone is safe to enter an establishment, and HIPPA laws, I'm curious what potential legal rammifications might occur down the road, given how litigious of a society we live in

If you don't like the thread, just keep fucking scrolling

 

[12thMan]

I don’t even think you have to pick sides to have an opinion on something like this and talk about it. A pandemic. Temperature checks in public to enter places. I would think it was weird if you didn’t have some sort of an opinion on these things. This is unprecedented stuff and to say “who cares” is kind of brushing off one of the craziest things we’ve ever seen.

 

[MattyMatt]

I stated I believe it's pointless because it won't stop someone who is not showing symptoms from getting inside and spreading the virus, it just creates an illusion of protection

One could make the argument that it lowers the risk statistically speaking. If you don't check then people with a fever could show up. They might be more contagious (I could be wrong about that). If you don't allow them in then you've eliminated at least one part of all that are carrying the virus and are contagious. That lowers the odds of spread within that establishment.

And given you have non-medical staff "confirming" someone is safe to enter an establishment, and HIPPA laws, I'm curious what potential legal rammifications might occur down the road, given how litigious of a society we live in

I don't see how HIPPA would apply. As far as I know it only applies to people who work in the health care industry, and it has to do with sharing information (when people are concerned with it, it seems). So I don't see how it applies to a private business.

People can take my temperature all day long if they want. I don't care as long as they don't shove something up my fifth chakra.

 

[davin]

I’m a essential worker as I Service commerical food equipment, I had a service call at The Ritz Carlton Hotel and I had to fill out paperwork/questionnaire and temp. checked before I could enter

 

[Tarheel4Life]

I work with a lot of healthcare firm technology systems. We create services that manage controls like HIPAA so I’m at least peripherally familiar with the requirements and definitions here.

HIPAA exists primarily as a set of standards designed to protect PII (Personally Identifiable Information) in data and technology systems. Personally Identifiable Information could be as simple as someone’s name, date of birth, or SSN - it’s any data that identifies an individual.

In this case, HIPAA wouldn’t generally apply if the checkpoint didn’t store any data or force people to identify and register before having their temperature taken. In other words, if they just anonymously scan people’s foreheads without writing anything down and then ask a supervisor to visit with people that showed a temperature, there is no data, hence no PII, hence HIPAA does not apply. If, after meeting with an individual with an elevated temperature, their name and temperature or other data was entered into a computer system, then HIPAA controls must be present to protect that information. In essence, HIPAA protects you forcing certain parties to protect through information about you.

I’ll leave whether it’s a violation of your rights in some other way to any attorneys here, but for me personally, I welcome any practices that aren’t particularly obtrusive that lessen the likelihood that I’ll be exposed to COVID. It won’t catch asymptomatic people, but it will catch those that have started to demonstrate symptoms of COVID (as well as those that may just have the flu or other virulent afflictions that I’d rather not be exposed to). I don’t think it’s a big ask to have people’s foreheads scanned from 2 feet away for less than 10 seconds before walking into a building.

We have to accept some of these measures or we we’ll have less than desired effects in preventing COVID’s spread.

 

[Tarheel4Life]

I’m a essential worker as I Service commerical food equipment, I had a service call at The Ritz Carlton Hotel and I had to fill out paperwork/questionnaire and temp. checked before I could enter

In this example HIPAA doesn’t prevent them from being able to stop you and deny you entry unless you fill out the paperwork and have your temperature checked, but since they now have personally identifiable information and PHI (personal health information) about you they may be subject to needing to control that data securely via HIPAA-compliant controls (for example, if the data resides in a a database, forcing multi-factor authentication for access to the database, protecting it with a properly configured firewall, establishing clear logs that identify who accessed information, when, and what they accessed, controls and alerts around unauthorized access, etc).

 

[Tarheel4Life]

I suspect (but I’m not an attorney) that some organizations are doing this to insulate themselves somewhat from litigation from employees that do eventually get sick and suspect they picked up COVID in an office - specifically, trying to demonstrate that they are taking some measures to protect employees that have been asked to return to work.