On June 22, 2020, New York City entered Phase Two of reopening after three months of mandated closures for nonessential businesses brought on by the COVID-19 pandemic. In Phase Two, restaurants may service customers in outdoor dining spaces, retail stores may allow shoppers inside, and office-based workers may resume operations.

While COVID-19 cases in New York City have significantly dropped and the percentage of positive tests has been hovering at around 1% in the days leading up to Phase Two, concern for a resurgence should guide employers eager to reopen and resume regular functions.

Various guidelines for best practices in reopening have been issued. At the federal level, the Equal Employment Opportunity Commission (EEOC) frequently updates its guidelines regarding employment matters related to COVID-19, which should be reviewed and adhered to as NYC transitions into this next phase.

Re-Entry Into the Workplace

Employers may conduct COVID-19 screening of employees as a precautionary measure. According to the EEOC, employers may permissibly measure body temperature and administer COVID-19 testing for their employees prior to allowing re-entry into the workplace. Employers may not, however, administer antibody testing in deciding whether or not to permit re-entry. While both tests are medical examinations under the Americans with Disabilities Act (ADA), the difference is that the EEOC has deemed the COVID-19 test, but not the antibody test, as an examination that is “job related and consistent with business necessity.” This distinction makes the COVID-19 test permissible under the ADA, which prohibits discrimination against persons with disabilities.

Employees who test positive or have symptoms associated with COVID-19 may be validly excluded from the workplace by employers. Regardless of the adopted screening measure, it is important that employers maintain confidentiality of medical information and store medical files separately from personnel files....