OSHA’s new emergency temporary standard doesn’t require employers to pay testing fees or compensate workers for the time spent being tested, but other federal, state, and local laws may require it and business-side attorneys want clarity on what they should do.
“What OSHA has actually done is not take a position. They said we’re not going to independently require employers to pay for tests, however employers might have to under pre-existing law,” said Devjani Mishra in New York, leader of Littler Mendelson P.C.’s Covid-19 task force.
While the standard took effect Nov. 5, the U.S. Court of Appeals for the Fifth Circuit on Saturday put the new workplace mandate rule on hold pending further litigation.
In general, the regulation mandates employers with 100 or more workers to require employees to be vaccinated or tested weekly starting Jan. 4. OSHA officials discussing the standard said employers aren’t required to pay for testing because free and widely available vaccinations are the most effective way to prevent deadly Covid-19 infections.
Industry groups meeting with OSHA and White House officials before the standard’s release, though, had warned the Biden administration about high testing costs and the burden of setting up testing programs.
Mishra estimated about 30 states have requirements for employers to pay for work-related medical tests that could include Covid-19 tests required by OSHA.
Before the OSHA standard, the pandemic spawned numerous questions about which protective measures employers should cover for workers, such as waiting for a temperature check or filling out a health questionnaire before entering a building.
And employers for years have had to consider whether workers needed to be compensated for putting on and taking off protective clothing—donning and doffing—or waiting for entrance or exit security checks.
One of those states where Covid testing may be covered by employers is California, where the Division of Occupational Safety and Health is expected to quickly enact a version of the federal standard.
“We’ll have to see what Cal/OSHA says when they put out their language to adopt/conform to the emergency temporary standard, but I have a hard time seeing them saying the cost for testing can be passed to employees,” Benjamin Ebbink, a partner with Fisher Phillips LLC in Sacramento, said in an email.
“We have very aggressive wage and hour laws, impacting time spent testing, and reimbursement law which requires employers to pay for all ‘necessary expenditures,’” Ebbink added.
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Federal laws and regulations outside of OSHA could apply to these testing time questions, said Scott Hecker, senior counsel at Seyfarth Shaw LLP in Washington.
“We may see at the federal level, OSHA’s sister agency, the Wage & Hour Division, getting involved here because there could be Fair Labor Standards Act implications,” Hecker said.
In previous rules where OSHA has mandated testing, paying for those tests typically fell to the employer, said Julie Vanneman in Pittsburgh, chair of Dentons Cohen & Grigsby’s Environmental National Practice group.
“This is different,” said Vanneman.
Hecker and Vanneman both mentioned DOL’s Wage and Hour Division guidance, written prior to the OSHA standard, that cited instances where employers had to pay workers for time spent being tested. Both also said the division should issue more guidance on how labor laws apply to this mandate.
In guidance issued as frequently asked questions and responses, the division said an “employer is required to pay you for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours.”
In another response the division advised, “For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic.”