Workplace Testing Guide May Provide Target for Lawsuits
U.S. Equal Employment Opportunity Commission guidance that sanctions employer use of COVD-19 testing raises more questions than it answers, and increased employment practices liability claims may be inevitable, say many observers.
While the guidance provides some parameters that employers can follow as they restart operations, it carries limited legal authority and leaves numerous details unaddressed, which could lead to a variety of discrimination lawsuits, they say.
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Employers should be careful how they implement their testing policies, said Gus Sandstrom, a partner with Blank Rome LLP in Philadelphia, who defends and advises employers.
“It sounds very good to say, ‘We’re going to test, we want to test,’ but the real question is how do you test right,” he said.
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Experts say any claims arising from tests are likely to be covered by employment practices liability insurance, but there is no guarantee. “It will depend on the circumstances of each policy,” Mr. Sandstrom said.
“I think the employer has a good argument it is covered by EPLI, but we haven’t seen yet how insurance companies are going to respond, and what position they’re going to take with respect to coverage,” he said.
“Workplace Testing Guide May Provide Target for Lawsuits,” by Judy Greenwald, was published in Business Insurance on May 5, 2020.