My new employer is requiring that I take an antibody test to see if I have ever had COVID-19. Is it legal for him to ask for this?
Employers are within their rights to require that employees and new hires take a test to see if they are currently infected with COVID before they allow them to enter the workplace, but not as a condition of employment.
However, testing for antibodies to see if someone has ever had COVID is a completely different matter.
The Centers for Disease Control and Prevention guidelines say that antibody test results “should not be used to make decisions about returning persons to the workplace.”
Also, it constitutes a medical examination under the Americans with Disabilities Act, and an antibody test at this time does not meet the ADA’s “job-related and consistent with business necessity” standard for medical examinations or inquiries for current employees.
So no, it is not legal and is a violation of the ADA — currently.
If I call in sick, can my employer ask if I have symptoms of COVID, and then require a doctor’s note before I return?
We’re all COVID this week, for obvious reasons.
During a pandemic such as this, employers may ask their employees if they are experiencing symptoms of the virus. Employers must maintain all information about any employee illness as a confidential medical record.
An employer may also exclude those who test positive for COVID, or who have symptoms that are associated with COVID, from the workplace because, as the Equal Employment Opportunity Commission has stated, their presence would pose a direct threat to the health and safety of others.
And yes, for those same reasons, employers may require a doctor’s sign-off that you are no longer infectious before allowing you to return to work.
Stay safe, my friends.
Gregory Giangrande has over 25 years of experience as a chief human resources executive. E-mail your questions to [email protected] Follow Greg on Twitter: @greggiangrande and at GoToGreg.com, dedicated to helping New Yorkers get back to work.
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