I appeared in court last week in a courthouse that I have not visited since March. I have plenty of cases there, but the judges have been very efficient at keeping attorneys out of the courtrooms. I had to attend because I had clients who were appearing.
When I arrived, security asked me a battery of questions including if I had any symptoms of COVID or if I had come in contact with anyone who had symptoms of COVID. They then took my temperature using a thermal camera. Once I was allowed into the courthouse, I was asked to fill out a half sheet of paper, detailing who I was, my contact info, and which courtroom I was to appear in. Finally, a bailiff escorted me to the courtroom.
All of these procedures felt a bit overboard to me, and I was concerned that I would have too high a temperature to be let in the building. I didn’t have any signs of COVID, but I know that thermal cameras can be very inaccurate at measuring body temperatures. I wondered if I would be black-listed if I registered higher than 100.4 degrees. Being escorted also seemed a bit silly since it’s a public building. Plus, they did not escort me out, which meant I was free to roam the premises. I didn’t, but it did seem to undermine the value of the original escort.
But this got me thinking, is this legal? What if I had refused to comply with one of these steps? I assume I would have been barred from entering the courthouse, but can they do that?
The short answer is yes, they can do all of these things, but I think it warrants some discussion.
What businesses (and government) are doing
Businesses and governments are pulling out all stops on the COVID prevention routines. I have seen some form of each of the following techniques:
Recording customer information
Taking names, phone numbers, and, possibly, email addresses.
The temperature that is most cited with refusing admittance is 100.4. I have heard stories of patrons being forced to wait for their temperature to reduce before being admitted, but I have never heard of anyone who was actually barred due to temperature.
I recently heard about someone who tested at 107, which would mean that they were dead. Eventually, their temperature came down and they were allowed into the establishment, but it begs an important question: what happens when the machine is clearly wrong?
Asking COVID-related questions
These questions normally include whether you have symptoms, which can be tricky since the list of symptoms is pretty long, and I am yet to hear of an establishment identifying what the symptoms are. Do you have to report if you have a headache but no fever? I don’t know. I imagine that many people lie about these questions. I’m not sure what value they actually have.
Limiting the number of customers on the premises
Limiting customers may be mandated by the government order. This limitation makes sense, but it can be applied in kind of silly ways. For example, I visited a local game store recently and the manager told me that he had to limit the store to five customers. He lamented to me that sometimes this meant separating families – a mother, father, and their four children, for example. One person would have to wait outside. But of course, that’s silly because those six people live together and don’t pose any additional risk by being allowed in together, not even to him.
Requiring the use of masks
This requirement is mandated by the government and makes perfect sense. Masks have been proven to reduce the risk of spreading the illness and pose no hazard to the wearer. If you disagree with me, don’t bother letting me know. I don’t care about your opinion, you are wrong.
Mandating social distancing
This is also an obvious solution to the problem. The little dots that businesses ask you to stand on help to keep space between people and reduce the spread of the infection.
Some places are using one or two of these strategies, and some places are using all of them.
Is it legal?
Businesses cannot refuse to serve someone based on a discriminatory reason, and, generally, when we consider limitations such as the ones listed above, we need to consider whether the limitations imposed satisfy a legitimate business purpose.
The legitimate business purpose is to limit the spread of COVID. That is clearly a reasonable purpose so the actions taken are legal because they are pursuing that purpose, even if it means that the business is refusing to serve some people.
Therefore, you can’t claim discrimination when a business makes you leave because you’re not wearing a mask. First, I’m not sure there is discrimination there at all. Requiring you to wear a shirt is not discriminating. Second, they are fulfilling a legitimate business purpose in protecting their employees and other customers.
But what about some of the other requirements?
For example, taking temperatures has been proven to not prevent the spread of COVID. Thermal cameras are frequently wrong, and not everyone who has COVID gets a fever. Further, the actual problem with COVID is that the vast majority of people have no symptoms at all, including fever. Therefore, arguably taking temperatures does not satisfy the legitimate purpose of limiting the spread of infection. Can businesses or governments use a method that doesn’t work and still satisfy the legitimate purpose?
We see this in other areas. Consider the security theater that occurs before getting on a plane. Taking off your shoes almost certainly does not prevent attacks on airplanes, but we do it anyway. I actually read an article years ago (that I cannot cite due to lack of memory) that discussed how the FBI conducted a test whereby it was able to smuggle an outrageous number of bombs aboard airplanes. My point is that these security requirements are allowed despite not being very effective so it stands to reason that judges will also allow the taking of temperatures to enter a store or government building.
In short, yes, I think the security theater will be allowed, and if you refuse to comply with the requirements, they can refuse to admit you.