Are New COVID-19 Policies Violating Truckers’ Privacy Rights?
Little Rock, AR – Truckers are putting their wellness on the line every day in the battle against the COVID-19 pandemic, but are they also losing their right to privacy when it comes to their own health?
Just in recent days we have seen more and more shippers and receivers requiring truckers to complete a health survey before being allowed on-site.
Some shippers/receivers are requiring drivers to remain inside their trucks at all times over fears of coronavirus spread.
Transportation Nation Network (TNN) broke the news last week that Walmart would begin requiring all truckers to have their temperatures checked before they would be allowed to even enter any of the retail giant’s more than 160 distribution centers.
Read more on this story HERE.
Also last week, U.S. Xpress, the nation’s fifth largest asset-based truckload carrier by revenue, began administering temperature checks for anyone entering its locations, including terminals, shops and dedicated sites.
In a statement, the company said, “Before entrance into a facility, every person will be required to answer a health survey and submit to an infrared thermometer check. For those with a 100.4 or above temperature, they will be advised to return home and contact a health care provider.”
TNN also broke the news over the weekend that New Mexico Governor Michelle Lujan Grisham is currently working on a plan to deploy the National Guard to screen travelers, including all truckers, entering the State.
According to Governor Grisham, truckers would be required to submit to a temperature check.
If the trucker had an “elevated temperature,” an official would follow the driver to his/her destination to ensure he/she did not get out of the truck.
Read more on this story HERE.
While truckers seek to adhere to widespread social distancing and facial covering policies implemented in states across the nation, there are growing questions and concerns about when a driver’s right to privacy ends and when the public or carrier’s right to know begins.
For now, let’s focus on a driver’s relationship with a carrier.
For instance, can a carrier lawfully require an employee to submit to a temperature check?
Can a trucking company legally fire a driver who answered a health survey misleadingly?
What about if a driver did not reveal he/she was suffering from symptoms known to be associated with COVID-19, like a dry cough, shortness of breath, or fever?
Are such actions an unconstitutional or unlawful invasion of a driver’s right of privacy?
For answers on how trucking companies are being advised on such matters, TNN asked transportation law expert David Robinson.
He is currently a partner at Scopelitis, which represents and advises a host of mid to large-sized trucking fleets.
“Employers are permitted to ask employees if they are experiencing flu-like symptoms,” Robinson said. “Because these are not likely to reveal information regarding a disability, they are not unlawful medical inquiries under the Americans With Disabilities Act.”
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Further, Robinson explained that “given the declaration by the World Health Organization that COVID-19 is a pandemic, and given the rapid spread we are experiencing, the Equal Employment Opportunity Commission (EEOC) has made clear that employers may take body temperature readings of their employees and these readings will not be considered an unlawful medical exam under the ADA.”
Regardless of how a driver might feel about being asked about his/her health, Robinson says a carrier likely would have legal standing to dismiss a driver if that driver was found to have given untruthful answers to legal health questions.
“In the current environment, I believe that an employer would have grounds to discipline an employee who provides false information regarding their health status,” he commented. “Such actions could endanger the health and perhaps lives of other employees, and I believe this would be a legitimate, non-discriminatory reason for disciplinary action – particularly since Congress has stepped in to provide paid sick leave benefits to employees experiencing temporary leaves from work for COVID-19 reasons.”
While some may well disagree with Robinson’s legal opinion and analysis, it is beneficial for drivers to at least be aware of how carriers are being advised during these unprecedented times.