NEW California Statewide Mask Order; Employers Do Not Have Right to Conduct Antibody Testing
California Issues Statewide Mask Order
Pursuant to an Order issued by the State Public Health Officer & Director, effective June 18, 2020, people in California must wear face coverings when they are in the high-risk situations listed below:
- Inside of, or in line to enter, any indoor public space;
- Obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank;
- Waiting for or riding on public transportation or paratransit or while in a taxi, private car service, or ride-sharing vehicle;
- Engaged in work, whether at the workplace or performing work off-site, when:
- Interacting in-person with any member of the public;
- Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
- Working in any space where food is prepared or packaged for sale or distribution to others;
- Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
- In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
- Driving or operating any public transportation or paratransit vehicle, taxi, or private car service or ride-sharing vehicle when passengers are present. When no passengers are present, face coverings are strongly recommended.
- While outdoors in public spaces when maintaining a physical distance of 6 feet from persons who are not members of the same household or residence is not feasible.
EEOC Confirms That Employers’ Right to Test Employees for COVID-19 Infection Does Not Extend to Antibody Testing
The Equal Employment Opportunity Commission (“EEOC”) advised has already confirmed that employers can require employees to submit to a viral test to see if they have a current COVID-19 infection. However, COVID-19 viral testing and antibody testing are not the same.
As the Centers for Disease Control & Prevention (“CDC”) has explained, a viral test “tells you if you have a current infection,” while an “antibody test tells you if you had a previous infection.” In contrast with its position on viral testing for current infection, the EEOC issued additional guidance yesterday prohibiting employers from requiring employees to submit to antibody testing before returning to work.
Please reach out if you have any questions regarding the above.
|ERICA M. SOROSKY
|ERIN K. OYAMA