As states begin to allow businesses to reopen amid the COVID-19 pandemic, employers now face difficult decisions about when and how to reopen their doors in a way that keeps their employees and clients safe while also protecting employee rights. Much of the focus of employers to date has been on implementing policies and procedures for social distancing and preparing physical worksites. This article addresses other important legal considerations for employers related to COVID-19 testing and vaccinations, as well as contact tracing in the workplace, which implicate various federal, state and local laws and may trigger rights and obligations under the National Labor Relations Act (NLRA).

Testing

In considering whether they should be testing employees for COVID-19 before employees are permitted to enter the worksite, many employers are asking whether they are legally required to do so and whether they are legally permitted to do so. The Occupational Safety and Health Administration (OSHA), the Center for Disease Control and Prevention (CDC) and the Equal Employment Opportunity Commission (EEOC) recently have issued guidance on preparing workplaces to minimize potential exposure and transmission of COVID-19, including guidance on testing for COVID-19. In addition, New York state has issued guidelines for the reopening of non-essential businesses, which require that employers conduct daily employee health screenings for COVID-19.

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