As COVID-19 cases continue to surge, many employers have implemented a variety of safeguards to limit the spread of COVID-19 in their workplaces. One safeguard being utilized is a COVID-19 testing program. As a preliminary matter, the Equal Employment Opportunity Commission has advised that “an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat toothers,” provided such testing is accurate and reliable. When administering a COVID-19 testing program, employers may wish to use licensed professionals. Consequently, many employers have chosen to engage third-party vendors to conduct COVID-19 testing for employees. Utilization of a third-party vendor not only eases the administrative burdens associated with running a COVID-19 testing program, but also reduces potential employer liability. However, utilization of a third-party entity poses a variety of legal and practical implications and, as a result, employers would be well advised to act cautiously when entering into these arrangements.
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