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Shot Rule Forcing Workers to Pay Testing Costs Irks Advocates

Nov. 4, 2021, 8:43 PM

The federal government’s new private-sector vaccination mandate is the type of economy-wide response to the pandemic that worker advocates have recommended since early last year, but some are criticizing how it allows employers to shift testing costs onto workers who resist vaccination.

The emergency rule unveiled Thursday requires employers with more than 100 employees to provide paid leave to workers to get vaccinated or recover from the side effects of a jab—something the Biden administration referred to as a leading barrier to raising the nation’s vaccination rate.

Yet the measure also permits employers to make workers pay for weekly testing and masks unless other laws or collective bargaining agreements kick in—as Bloomberg Law previewed in an exclusive story last week.

The National Council for Occupational Safety and Health, a leading workplace safety advocacy group, called that decision “wrong-headed,” noting that it represents a break with precedent for the U.S. Occupational Safety and Health Administration.

“Employers, who have a responsibility to provide a safe workplace, have always been required to pay the costs of tests and screening for occupational illnesses and for personal protective equipment; this case should be no different,” Jessica E. Martinez, co-executive director of National COSH, said in an emailed statement.

Tests Are Costly

That’s no small hurdle for workers. Many self-insured employers have paid roughly $100 for each polymerase chain reaction (PCR) test.

“Workers should not have to use money out of their own pockets to pay for critical PPE like masks,” said Marc Perrone, international president of the United Food and Commercial Workers union."The White House and CEOs must work together to find a better way to cover the cost of masks and other critical PPE, instead of shifting the burden onto essential workers already stretched to the breaking point.”

Enforcement of some aspects of the rule will begin Dec. 5, with compliance for the vaccination-and-testing component set to start Jan. 4. The emergency temporary standard comes some four months after the agency released a Covid-19 emergency rule that applied only to the health-care sector—a narrowed scope that many worker advocates found disappointing.

Debbie Berkowitz, a fellow at Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor, and a former senior official at OSHA during the Obama administration, called the rule a “first step” at a broader response, and added: “I’m glad they’re taking it.”

She said, however, that a vaccination requirement alone is not enough for “workers who are still working shoulder to shoulder in meat plants,” and pointed to the rule’s provision requiring that unvaccinated workers wear masks when indoors.

“Masks and social distancing are still important pieces,” she added. “Those things will mitigate the spread of Covid in workplaces; we know workplaces are a significant driver of the spread of the pandemic.”

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Support for Whistleblowers

An additional concern advocates expressed was that OSHA enforce whistleblower protections for workers who complain to authorities about noncompliance and other unsafe working conditions.

“We want to make sure it’s enacted in a way that ensures workers are free from retaliation and when they speak up about health and safety concerns,” Marcy Goldstein-Gelb, co-executive director of NCOSH, said in an interview before the rule’s initial rollout.

Text of the 490-page rule shows that employers will be required to inform employees that they are legally prohibited from retaliating against workers who report safety concerns.

But OSHA has only 1,850 inspectors responsible for the health and safety of 130 million workers, and it’s still required to inspect workplaces for other safety issues. That poses major enforcement challenges for a rule that is expected to cover 8 million workplaces.

During the pandemic, workers have provided OSHA with a steady stream of complaints about unsafe working conditions that led to inspections, and agency records show it has received a record number of complaints of retaliation. As of the end of October, OSHA had received 5,939 complaints of retaliation related to workplace protections for Covid-19, according to the agency’s website.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com