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Employment Discrimination Blog

Monday, July 27, 2020

Employer Duties as Businesses Reopen

Are employers required to test employees for coronavirus?

As businesses across the country start to reopen after over a month of being either partially or completely closed due to the coronavirus pandemic, employers have many questions and concerns. The coronavirus, a respiratory virus originating from China, has swept the nation, causing waves of infection and corresponding economic turmoil as businesses were forced to close to stop the spread of the virus. Now, as businesses reopen, many employers worry about their own liability should employees or customers contract the virus while at work. The issue is a developing one without clear cut answers, but some existing laws should guide employers in the right direction towards protecting themselves, employees, and others. Our DeKalb County, Georgia business law lawyers discuss some of the issues surrounding employers and the reopening below.

OSHA’s General Duty Clause

The Occupational Safety and Health Act imposes a general duty on employers to provide a safe and healthful workplace. The clause requires employers to protect employees against recognized hazards, which now includes COVID-19. To adequately protect employees against the novel coronavirus, employers will need to develop a program which addresses the potential threat in the workplace. Depending on the exact nature of the workplace, this program might involve providing employees with personal protective equipment or PPE, training employees as to the virus and how to prevent its spread, logging any illness, developing a means of reporting COVID-19 diagnoses, and more.

Antibody Testing for COVID-19

Some employers have elected to implement antibody testing, with the thought being that employees with positive antibody tests should be less likely to contract the virus a second time. However, the Equal Employment Opportunity Commission recently released guidance stating that employers cannot force employees to undergo antibody testing. The EEOC said forcing employees to take the test would violate the Americans with Disability Act, due in large part to the lack of certainty surrounding the test. While antibody testing could present useful information, as of now our knowledge as to what it means to have antibodies is limited. It is not yet certain whether having coronavirus antibodies actually has an affect on your ability to be reinfected.

Employers across the country will want to consult with an employment law attorney for guidance on how they can ensure a safe and successful reopening. With a well thought out program in place, employers can effectively mitigate against the spread of the coronavirus among employees and third parties alike.


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