On June 6, 2020, New York Governor Andrew Cuomo issued Executive Order No. 202.38, permitting commercial building owners, retail store owners, and those authorized on their behalf to manage public places within their buildings and businesses to require individuals to undergo temperature checks as a condition to entry. To prevent people that may have COVID-19 from entering the premises, owners may deny entry to “(i) any individual who refuses to undergo such a temperature check and (ii) any individual whose temperature is above that proscribed by New York State Department of Health Guidelines.”

Citing the Centers for Disease Control and Prevention and New York State Department of Health Guidance, the Executive Order is silent on New York’s new privacy legislation the SHIELD Act but does direct that the Order be applied in a manner consistent with the American with Disabilities Act and New York State or New York City Human Rights Law.

Finally, the Executive Order mandates that owners who require temperature checks cannot be subject to a claim of violation of the covenant of quiet enjoyment or frustration of purpose for instituting temperature checks alone.