Can My Employer In Manhattan Lawfully Require Me To Undergo, At Work, A Test For COVID-19?

Yes, under many circumstances, your employer in Manhattan can lawfully require you to undergo, at work, a test for COVID-19.

Generally, measuring an employee’s body temperature is a medical examination. Because the United States Centers for Disease Control (the “C.D.C.”) and state and local health authorities have acknowledged the community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

Likewise, an employer may administer a COVID-19 test (that is, a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace.

The federal Americans with Disabilities Act (the “A.D.A.”) requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.

Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The A.D.A. does not interfere with employers following recommendations by the C.D.C. or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current C.D.C. guidance will meet the A.D.A.’s “business necessity” standard.

Consistent with the A.D.A. standard, employers should ensure that the COVID-19 tests are considered accurate and reliable.

Further, under the circumstances existing currently, the A.D.A. allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.

Similarly, if an employer is hiring, it may screen applicants for symptoms of COVID-19. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This A.D.A. rule applies whether or not the applicant has a disability.

An employer may take an applicant’s temperature as part of a post-offer, pre-employment medical examination. Any medical examinations are permitted after an employer has made a conditional offer of employment. However, as stated, employers should be aware that some people with COVID-19 do not have a fever.

The federal Occupational Safety and Health Administration (“OSHA”) states that employers may conduct work site SARS-CoV-2 testing. According to OSHA, employers may consider implementing strategies to reduce risks to the safety and health of workers in workplaces from COVID-19 that include conducting SARS-CoV-2 testing. Neither the federal Occupational Safety and Health Act (the “O.S.H. Act”) nor OSHA standards prohibit employer testing for SARS-CoV-2 if applied in a transparent manner applicable to all employees (that is, as long as the testing is not retaliatory).

Similarly, consistent with the New York Human Rights Law (the “NYCHRL”), employers may require that employees undergo tests such as temperature checks or diagnostic checks to confirm whether employees pose a direct threat to workplace health and safety due to infection even though such examinations would ordinarily be prohibited in the absence of the COVID-19 pandemic. However, tests must not be administered in a discriminatory manner, by, for example, requiring tests of certain employees based on their age.

If you are an executive or a professional in Manhattan or the surrounding the borough of Manhattan metro area and you believe that you have been wrongfully terminated, that you’ve been denied a salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call Manhattan Employment Lawyer David S. Rich at (347) 941-0760 today.

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