Possible Legal Challenges to the Use of Thermal Cameras and Temperature Checks in the Workplace
July 8, 2020
The Meaning of the 4th Amendment in the Age Of COVID-19
By Oscar Villanueva
Managing Director of Security Services at R3 Continuum
Please Note: This blog post is not intended as legal advice. An attorney should be consulted with questions regarding the topic covered in this blog post.
The use of temperature monitoring devices, such as thermometers and thermal cameras, has expanded significantly to help prevent COVID-19 infection. Many government and corporate settings now deploy these technologies to monitor people coming into their facilities. This practice looks for a high temperature on those entering the facility, indicating the possibility of a fever, a common symptom of COVID-19 infection. These temperature checks can be useful but also represent potential issues for businesses deploying such methods of infection monitoring. One such issue regards the legality of taking and monitoring someone’s temperature, which may be considered by some to be a violation of the 4th Amendment of the Constitution and an unreasonable search and seizure.
Currently, there is no federal regulation of human temperature scans for this purpose. This includes the FDA recently announcing they don’t intend to regulate the widespread use of these devices. As things go, the use of telethermographic systems to monitor fever is likely to be challenged as an invasion of privacy and a violation of the Fourth Amendment and medical and PHI regulations.
The 4th amendment and your constitutional rights
The 4th Amendment was established to prevent the unreasonable search and seizure of a person’s property. US Supreme Court rulings in the past have decided affirmatively on the concept of a “reasonable expectation of privacy” as an essential part of the 4th Amendment. A “reasonable expectation of privacy” means that if a person leaves personal effects in “plain view” and open to the public, the 4th Amendment protection does not apply. Conversely, if some type of “surveillance” is necessary to gain access to personal information, the 4th Amendment protection can apply. In the case of temperature monitoring, the use of equipment to gain access to a person’s temperature could be understood by some as the use of “surveillance” for an unreasonable search and seizure of personal and private information. Here is the 4th Amendment language:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Consent as condition of access
Most places using thermal technology for temperature monitoring are doing so through the consent of those being monitored either as a condition of employment or as a requirement to enter the facility. However, as this technology continues to be used extensively, there is a high likelihood of legal challenges to this practice as unconstitutional.
Usefulness of temperature monitoring approach
The use of temperature monitoring technology and practices is not likely to yield the infection surveillance and prevention desired. As has been reported extensively, the COVID-19 virus can be asymptomatic in many people, meaning that a person can be infected with the virus and be contagious but not have a temperature, for example. In this case, temperature monitoring will not help as intended. In addition, other conditions can and usually cause a high temperature in people, including the weather on a hot day or exercising. Therefore, while thermal monitoring is a tool that can help prevent COVID-19 infection, it should not be thought of as the ultimate infection surveillance solution.
What businesses should consider going forward
Reasonable precautions by businesses are essential to prevent the spread of COVID-19. According to the latest prevention information by CDC health experts, the wearing of masks and social distancing continue to be the most recommended and effective ways to prevent the spread of the disease (additional recommendations are attached below in the CDC poster). If thermal monitoring is the desired technology of use, consider it a tool to be deployed in addition to mask-wearing and social distancing and not a foolproof standalone solution. Consult with an attorney regarding possible issues resulting from the use of this technology.
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