Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

  • Non-contact infrared thermometers that use lasers to measure temperature from a distance;
  • Thermal imaging cameras that detect elevated skin temperatures compared against a sample of average temperature values;
  • Monitoring systems that use thermal and color visual imaging to detect fevers in high-volume pedestrian areas; and
  • “Wearables” that can use radiometric thermometry measuring electromagnetic wave emissions.

While temperature screening has been endorsed by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission, and various state and local governments, biometric privacy laws have not been suspended or amended.  The Illinois Biometric Information Privacy Act (“BIPA”) regulates the possession, collection, capture, purchase, receipt, and sale of “biometric identifiers” and “biometric information”—defined to include retina or iris