EEOC Guidance on Antibody Tests and COVID-19 Tests

The Equal Employment Opportunity Commission (EEOC) published guidance concerning business practices that are both safe and compliant with anti-discrimination laws during the COVID-19 pandemic. The guidance discusses various relevant practices but most notable of which is the EEOC’s guidance on medical examinations prior to employees re-entering the workplace. According to the EEOC, antibody tests may not be required by employers for employees to re-enter the workplace, but employers may require employees to undergo a COVID-19 test to re-enter.

The EEOC advised that antibody tests should not be used to make decisions about returning to the workplace and currently does not meet the Americans with Disabilities Act (ADA)’s “job related and consistent with business necessity” standard for medical examinations for current employees. This standard applies to any mandatory medical test for employees. Thus, an antibody test may not be required for an employee to enter the workplace and employers should be aware that requiring antibody tests could be the basis of a discrimination claim.

On the other hand, tests which determine if someone has an active case of COVID-19 are permissible under the ADA and employers may use it to make decisions on whether an employee should return to the workplace. The distinction is that an employee who is currently infected with COVID-19 poses “a direct threat to the health of others.” However, employers should still be aware of the possibility of an employee testing false-positive or false-negative and employers should ensure that tests are accurate and reliable.

Nonetheless, employers are encouraged to practice social distancing, regular handwashing, and the wearing of PPE’s as there is no certainty that employees will not be infected with COVID-19 after the test is administered. In addition, employers should contact counsel to have a tailored COVID-19 safety plan compliant with federal anti-discrimination laws and regulations while ensuring a safe workplace for employees.

NY | How to Reopen Your Business

Reopening isn’t just going back to work – there are 5 steps that businesses must take to open their doors if they want to avoid legal troubles.

Step 1. Review the applicable guidance for reopening & affirm that you will comply.

Each industry has tailored guidelines from NYS DOH, which represents the minimum requirements for you to reopen.

Before you open your doors, you MUST affirm that you have read the guidelines at this link.

Guidance for your industry can be located here.

Step 2. Formulate a business safety plan.

Each business MUST develop a written safety plan to prevent the spread of COVID.

The plan must be retained on the premises of the businesses and made available for inspection by DOH or your local health and safety authorities (zoning) upon request.

The sample plan provided by NYS is 7 pages long and includes a daily mandatory health screening assessment for employees and essential visitors, a requirement to record a log of all those physically present at the premises, cleaning requirements, and much more.

Start writing your plan now in compliance with the law if you plan to reopen.

Step 3. Create logbooks to comply and maintain policies.

You need to create forms to implement your plan. You need the health screening assessment developed, a logbook for cleaning, and a logbook for visitors. These can be inspected by DOH and other authorities so they better exist before you open your doors.

Step 4. Floor markings and PPE.

You are required to provide your entire team with PPE so it’s time to start ordering supplies yesterday. Plus, you need to place signage and floor markings throughout your premises to maintain proper social distancing. So, take out your tape and measuring stick to get going.

Step 5. Craft your message.

Your team and your customers need to understand your plan and how it impacts them, or they won’t follow it. So, you need to create a message, start getting it out there via email and make it available to everyone at your business. This message must explain your safety plan and the new policies that you will enforce for the rest of COVID. Getting buy-in is the key to proper implementation and protecting you from suit and negative PR.

Legally Speaking: Legal Issues Folks are Facing in Buying/Selling/Renting this Summer

Everyone is in the Hamptons this summer. Tenants fled here in March. They are staying even after they were supposed to go back to the city at the end of their lease terms. Unfortunately, tenants have unilaterally elected to illegally holdover in their former rentals because it's not just more beautiful here, it's safer. This has caused major problems for buyers, sellers, and legitimate tenants alike.

Andrew Lieb shares many legal issues people are facing this summer in Dan's Papers. Click HERE to read the full article.