By Conn Maciel Carey’s COVID-19 Taskforce
As the OSHA COVID-19 Vaccination and Testing emergency temporary standard (“ETS”) works its way through the courts in pending legal challenges, employers are still scrambling to position themselves in the event the ETS goes back into effect. (Review our Employer Defense Report and OSHA Defense Report for full background on the ETS and the most recent updates on its current status.) A key issue to consider is the cost of testing.
Should the ETS go back into effect, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees (known as a “hard mandate”) or (2) a combination of a COVID-19 vaccination requirement and weekly testing, plus face covering requirement, for those employees who choose not to get vaccinated (known as a “soft mandate”). Under this soft-vaccine mandate, an employee may only report to the workplace after demonstrating either: proof of being fully vaccinated; or for employees who do not get vaccinated or decline to share their vaccination status, proof of a negative COVID-19 test result from within the last week. Employees who are not fully vaccinated must also wear face coverings when indoors and when occupying a vehicle with another person for work purposes.
Under the ETS, a COVID-19 test must be:
- Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test)
- Administered in accordance with the authorized instructions; and
- Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
Who is required to pay for testing for unvaccinated workers?
The ETS explicitly states that it “does not require the employer to pay for any costs associated with testing.” However, it also states that “employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.” The ETS also explains that it “does not prohibit the employer from paying for costs associated with testing.”
Are there any state laws that require employers to pay the cost for COVID-19 testing?
There are a number of states with laws that may impact an employer’s ability to transfer the cost of weekly testing to employees, including Arkansas, California, Florida, Illinois, Kentucky, Michigan, Montana, New Hampshire, New Jersey, North Dakota, Pennsylvania, Ohio, South Dakota, Vermont, Virginia and others. Laws on point often restrict employers from charging employees or applicants for medical testing under certain circumstances or otherwise require employers to pay for and/or reimburse the employee for testing-related expenses. Some of these laws carve out exceptions where a medical examination or testing is required by law as a condition of employment. Many of these laws were written independent of the COVID-19 pandemic, and thus careful analysis is necessary to determine their impact in the context of required COVID-19 testing. Though at least one state, Utah, specifically requires employers to pay for COVID-19 testing for employees unless an employer is subject to the Federal Contractor Vaccine Mandate or Centers for Medicare and Medicaid Services Vaccine Mandate.
It also remains to be seen how states with their own COVID-19 emergency temporary standard might respond to the federal ETS. For example, California’s current COVID-19 ETS requires testing be offered at no cost to employees during paid time in certain circumstances, for example following an exposure and during outbreaks. We would not be surprised to see Cal/OSHA require the same of employers should weekly testing be added as a requirement as an alternative to vaccination.
What if an unvaccinated worker is testing because of medical or religious accommodations?
In addition, if an employee is participating in a testing program because of a medical or religious accommodation to vaccination, employers may be responsible for the costs associated with testing.
Generally, under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act, the employer bears the cost of an employee’s reasonable accommodation. Thus, to the extent an employer determines that testing is a reasonable accommodation to vaccination, for instance, it would likely have to pay for the weekly testing in the same way that it is required to pay for testing under a state law requiring that employers pay for medical examinations.
However, upon evaluating whether testing is a reasonable accommodation, an employer can consider whether testing creates an undue hardship. The undue hardship analysis is individualized and would have to be performed in response to each request for accommodation. The undue hardship standard differs for a request based on disability under the ADA as compared with a request based on religion under Title VII. Under the ADA, the standard is “significant difficulty or expense,” while the bar under Title VII is lower – “de minimis cost.” Thus, in the context of an accommodation, an employer may consider whether the weekly testing creates an undue hardship and thus whether the request for accommodation can be denied on that basis (it must consider any other accommodations as well).
It remains to be seen whether any guidance issues, from the EEOC or OSHA, that might offer further insight into this particular issue.
For employers covered by federal ETS, now is a good time to think though how you might implement ETS requirements, particularly what your policy will be on the cost of testing, including the time it takes for an employee to get tested.
Also consider whether there are specific laws on point in your state(s) and how your policies and procedures might need to be adjusted to address any applicable restrictions.
Finally, it is also a good time to think through any procedures for responding to requests for medical or religious accommodations. Employers who may not already be covering the cost to test will want to be prepared to analyze the issue in the context of individual requests for accommodation.