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New York Partner Hope Goldstein was quoted at length June 19 in Bloomberg Law’s Daily Labor Report regarding whether employers should require COVID-19 antibody tests as part of their return-to-work plans. The Equal Employment Opportunity Commission’s current advice notes that antibody tests violate prohibitions on medical testing under the Americans with Disabilities Act. “Companies want to do whatever they can to create the safest workplace they can envision and as liability-free a workplace they can envision,” Goldstein said. “The key with [viral] testing is that it can prevent a direct threat in the workplace. Immunity testing wouldn’t do that. It wouldn’t identify someone bringing harm into the workplace; it would do the opposite of that.” Goldstein added that while the EEOC’s guidance isn’t binding and could be updated, if an employer requires antibody testing and a worker sues, the guidance currently could be used against the company.

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