Is It Legal for a Restaurant to Take Your Temperature? Oregon Lawyers Say, “Open Wide.”

“Private companies can require you to wear a Speedo if they want,” says the ACLU.

HOT AND COLD: Temperature checks and contact tracing could become the norm for Oregon consumers who enter shops and restaurants. (Brian Burk)

Imagine: A Fred Meyer greeter asks for your name and cellphone number before you can grab a cart. The hostess at Tusk checks your temperature before you are allowed to dine. The trainer at your corner gym tells you to wear a mask, even on the stair machine.

Three months ago, such practices might have sounded like the dystopian fever dream of civil liberties worrywarts. Last week, they were among the recommendations from the Oregon governor's office.

News media outlets obtained draft copies of Gov. Kate Brown's guidelines for reopening businesses after the COVID-19 pandemic. Three of the guidelines stood out: Businesses should require patrons to submit to temperature checks, wear masks in stores, and provide names and phone numbers so contact tracers can track down anybody who made contact with a positive case.

The draft raised an obvious question: Is any of that even legal?

In fact, state documents show the governor's office was already wondering the same thing. "If a business sets a policy that all employees and customers are required to wear cloth face coverings," reads one document, "business management should consult with their legal counsel to determine whether or not such a requirement can be enforced and whether or not the business will provide a cloth face covering when a customer does not bring their own."

Shortly before press deadline May 5, The Oregonian reported the governor's office had drafted new proposals that no longer included recommendations for diners to wear masks in restaurants or for patrons to provide personal information.

Does it sound like state officials are confused? Well, local civil liberties lawyers are also scratching their heads.

"This is a situation that almost everyone who's alive today has never been in before," says Jay Stanley, a senior policy analyst for the American Civil Liberties Union. "The legality is tricky and unclear, especially when it comes to the government."

Let's take a walk into that murky legal future.

Can the governor tell restaurants to take customers' temperatures?

Probably. The lawyers who spoke to WW were conflicted about what the state government can and cannot require businesses to do.

Steven Wilker, a Portland lawyer who specializes in constitutional law and civil rights, says he believes it is within Brown's power to require businesses to conduct temperature checks, mandate masks and collect customer data.

"All three of these things that they're talking about are things that public health officials are recommending that people do," Wilker says. "Requiring these as conditions to operate strikes me as being within the governor's police powers."

Beth Creighton, a civil rights lawyer in Portland, says the governor's executive powers stop where the U.S. Constitution's interstate commerce clause begins. "I would say that could be challenged," Creighton says, "because that affects commerce."

What the lawyers did agree on is that any executive orders need to be grounded in public health and related directly to the pandemic. If not, the governor could be overstepping.

"Our view is, the government can restrict people's liberties in a time of pandemic," says Stanley of the ACLU. "But if there's another way to do something that doesn't infringe on people's freedoms, then the government shouldn't be infringing on people's freedoms."

OK, so the government can tell restaurants what to do. Can restaurants tell me what to do?

Oh yeah. Businesses have far more authority than the government in what they can require of customers and employees. That's because people have the choice to work, eat or shop somewhere else.

"Private companies can require you to wear a Speedo if they want," Stanley says.

Patrons agree to a contract of sorts with a business when they enter a store: I will, for example, purchase your goods or services for the listed price. "If they say, 'I'm going to add a condition to that contract that says you need to have a temperature below 103 degrees to get in the door,' they can choose to do that," Creighton says.

If a store was to enforce temperature checks, it would need to ensure that it's not doing so in a discriminatory fashion. It couldn't, for instance, check only the temperatures of the elderly.

Employment law is trickier. Typically, a restaurant couldn't require its workers to use a thermometer to clock in. That would constitute what's known as an "impermissible medical inquiry." It's discriminatory against workers with health problems.

But on March 21, the U.S. Equal Employment Opportunity Commission published new rules stating that a pandemic constitutes a "direct threat" to people's health, says Andrew Schpak, an employment litigation lawyer in Portland. So for the time being, employers are allowed to do this.

Schpak says in these uncertain times, he's advising businesses to err on the side of public health. "As an employer," Schpak says, "you probably want to err on the side of, 'OK, sue me for being too safe. Sue me for taking temperatures.'"

What if I don't want to give my name and phone number at the door?

No one can make you. But they can probably refuse you entry.

Wilker says if a patron declined to give their personal information, have their temperature checked or wear a mask, the business would have the legal right to turn that person away. "If you're enforcing mask use, and they refuse, I can refuse to provide service to you," Wilker says. "There's no constitutional right not to wear a mask in that circumstance."

Not everybody agrees.

Schpak, the employment litigation lawyer, says he's less concerned about the legality of taking someone's temperature than he is about contact tracing methods whereby the government would ask businesses to keep a log of patrons who visit their stores. In theory, Schpak says, this form of data collection would give the government a list of all the places a person has visited.

"It's similar to ideas of gun background checks: Why does the government have the right to know who I am or where I was?" Schpak says. "Let's think of the worst-case scenario: Are people going to be excited to write their names on a porn log or a weed dispensary [log]?"

In fact, says civil lawyer Michael Fuller, requiring people to enter their names at a cannabis store could be challenged in court—because for many people, cannabis is medicinal. "You're creating a registry for people's medicine," Fuller says.

This could be a violation of federal health privacy laws—called the Health Insurance Portability and Accountability Act, better known as HIPAA—which ensure medical information is kept confidential.

The governor's office says it's still ironing out the details—including legal questions.

"Guidance documents go through a number of reviews—by public health officials, legal staff, and others," spokeswoman Liz Merah said in an email to WW. "All draft documents are subject to change based on the feedback we receive."

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