The world has changed dramatically in the last ninety days. Just last year, the question of whether a restaurant would even ask a customer to take the customer’s temperature would have been unthinkable. Now, it is actually happening. All over the country. 

Taking your customer’s temperature before dining may provide solace to restaurant owners and their customers. However, the practice is not without risk. Since the practice is entirely new, as is the Pandemic in general, there is not a lot of legal guidance on this issue. However, there are some general rules which may help prevent problems in the future. Here is a random sampling of things to consider.

 

1. If you Decide to Test, Get Consent. The question of whether to take a customer’s temperature is a business decision. Will testing make your customers feel more at ease or will it make them nervous ? What about the public relations implications? These are important questions.  Nonetheless, if you decide to take the temperatures of your customers, the first thing you should require is the customer’s  written consent on a form prepared by a skilled lawyer. This may prevent your customers from later claiming that you have accessed their protected health information without permission or violated their privacy rights.
2. Test Everyone or Test No One. Restaurants, like employers, are subject to claims of discrimination. The question of whether one particular ethnic group, race or gender is more susceptible to Coronavirus has been hotly debated. However, for restaurant owners there should be no debate – if you are going to test, you should test every customer that comes in the door who consents, not just the ones you think may be more susceptible to the virus.
3. Avoid the Appearance of Medical Testing. There may be an impulse on behalf of restaurant owners to expand the scope of testing to include such things as a pulse oximeter test. This test measures oxygen saturation and pulse rate. Even if customers consent to such a test, restaurant owners are likely not trained to properly administer the test or to interpret the data that the test generates. It is better to leave this type of test to a trained physician.
4. Retesting. The temperature of normal healthy individuals can vary throughout the course of the day. Therefore, restaurant owners should make clear that, for anyone who consents to a test and the test reveals a high temperature, a retest will be available. In other words, customers should be given  a second chance.

Someday (hopefully soon) taking a restaurant customer’s temperature will be completely unnecessary. However, for restaurants which decide to pursue this path while the Pandemic is ongoing, they should proceed with caution.

 

About the Author: Roger Slade is an AV-rated commercial litigator with over 30 years of experience. Throughout his career, he has handled all types of litigation matters including business fraud, class-actions for both Plaintiffs and Defendants, real estate litigation, privacy litigation, commercial collection matters, employment discrimination claims, general business disputes and international family law matters. Roger has served on the Board of the Dade County Bar Association, is the President and Founder of the Heroes of Tomorrow Foundation, and is on the Board of Directors of the Florida Restaurant and Lodging Association.