In the latest Weekly Wright Report:
- To Test or Not to Test, That is the Question – read now
To Test or Not to Test, That is the Question
By now, employers are well aware that the Occupational Safety and Health Administration’s (OSHA) vaccine-or-test standard has forced employers with 100 or more employees to implement either a mandatory vaccination policy or weekly testing for unvaccinated employees. On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of the mandate’s implementation and OSHA has posted new compliance dates on its website. Covered employers must comply by January 10, 2022 and if an employer opts to permit employees to test in lieu of vaccination, testing of unvaccinated employees must begin on or before February 9, 2022. With the time for compliance bearing down, angst and debate among unvaccinated employees and employers has continued.
Should an employer decide to follow the path of weekly testing for the unvaccinated, many questions continue to exist as to the cost implications for employers and whether weekly testing should be permitted. In addition to surveying the current workforce to determine how many people are impacted, employers should evaluate some basic questions.
Who Is Responsible for Paying for the Test?
Nothing in the current mandates require employers to pay for the costs of testing. The answer to the question will depend on collective bargaining agreements, state law and federal law. For instance, if employees are not vaccinated and must be tested because the employer is accommodating a sincerely held religious belief or a medical condition, the ADA and Title VII may reasonably require the employer to pay the costs associated with testing these specific employees unless an employer could demonstrate that paying for such an accommodation is an undue hardship. For an employer to escape that burden, it would have to demonstrate that the burden is more than a minimal burden or expense. In addition, some state laws and CBA’s require employers to pay for job related medical testing.
What Is The Real Cost Of Testing If An Employer Offers This Option?
Both the Fair Labor Standards Act and most state laws hold that an employer must pay employees for any time when the nonexempt employee is deemed to be working for the employer, i.e., the employee is doing tasks for the benefit of the employer. Just like donning safety gear and other prepatory work to enter or exit a jobsite is considered compensable, arguably, compensable time would also include any required medical testing necessary as well. This would include time spent even on a worker’s day off, after hours or over and above the regular 40-hour work week of an employee. The DOL has offered no guidance on this issue at this time but it is not anticipated that this situation should be handled differently from other testing requirements unrelated to COVID-19.
Once an employer factors in the potential costs of testing, the real question for every impacted employer is to undertake a cost benefit analysis of whether the costs of permitting testing for those who are unvaccinated and have no medical or religious exemption make sense. The costs of testing, wages and interruption multiplied against the number of unvaccinated employees may make the decision for the employer.
The compensable costs are also in lieu of the unknown costs an employer will suffer should it begin to dismiss workers who refuse to comply with employer mandates including unemployment impacts, lost productivity and the ability to hire new workers.
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