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As employees in New York continue to return to their workplace amid the COVID-19 pandemic, there are questions about what employees’ rights are and what your job can do to ensure a safe working environment.


According to Equal Employment Opportunity Commission guidelines, your employer may, in certain circumstances, test their employees for COVID-19.  Your employer must show:

  1.  That any mandatory testing is job related and part of a business necessity.  Almost all employers will be able to show this, as an employee, or customer, entering the workplace who is infected with COVID-19 would pose a threat to other employees.  
  2. The employer must ensure that any COVID-19 tests are accurate and reliable.  Employers can use the FDA, CDC, or other health agency guidelines to determine what is accurate and reliable testing.  

Even if your employer tests for COVID-19, as that only would detect those currently effected, your workplace may, and should, continue to enforce other safety measures, such as social distancing guidelines, regular washing of hands, and wearing of masks.


While a COVID-19 test would determine if you are infected, an antibody test would show if you were infected previously and you have developed antibodies to COVID-19, which could mean that you are not at risk of becoming infected again, although the science is not clear on that yet.  The EEOC has issued guidelines that employers requiring tests for COVID-19 antibodies would be in violation of the Americans with Disabilities Act.  This is in agreement with the CDC, which has stated that whether or not a person has the antibodies should not determine if someone can return to work.  While the EEOC guidance is not binding on courts, it is instructive and regularly followed.  

If you have questions about COVID testing at your workplace, or other concerns about returning to work, the attorneys at Ricotta & Marks, P.C. are here to help.  Please contact us at 347-727-0661.

Ricotta Marks

Ricotta & Marks, P.C.

We understand that your situation is urgent. Our New York employment discrimination attorneys will respond to your questions and concerns as quickly as possible.

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