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Testing unvaccinated employees for COVID-19 under the OSHA vaccine mandate (updated Dec. 20, 2021)

December 20, 2021

Update: On Jan. 26, 2022, the Occupational Safety and Health Administration (OSHA) formally withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).

Under the Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), covered employers can either require all employees to be vaccinated, subject to exceptions, or allow employees to be vaccinated or unvaccinated, but require unvaccinated employees to wear face coverings and be regularly tested for COVID-19.

Overview of vaccine mandate testing requirement

Any covered employer considering the testing option, which must be put in place no later than Feb. 9, 2022, should consider the following:

Testing frequency: The seven-day rule

The seven-day testing window is essentially a rolling seven-day period for each employee. An employee who reports to a workplace where other individuals are present at least once every seven days must be tested, and provide documentation of the test result to the employer, at least once every seven days.

In the case of an employee who does not report to a workplace where other individuals are present for a period of seven or more days, for example an employee who regularly telecommutes but occasionally reports to the office, need not test weekly. Instead, these employees must be tested within seven days prior to returning to the workplace and provide documentation of that test result to the employer upon return to the workplace.

Employer enforcement

If an employee does not provide documentation of the test result to the employer as required, the employer must keep the employee removed from the workplace until the employee provides a test result. During this period, the employer may, at its election, allow the employee to work from home or require the employee to take leave, paid or unpaid, pursuant to its policies. If an employee refuses to test and/or provide documentation, an employer can proceed with discipline for insubordination pursuant to its existing policies and practices. Employers should remain mindful of obligations under collective bargaining agreements, individual employment agreements, and duty to accommodate disabilities and sincerely-held religious beliefs.

Exceptions to testing

The ETS does not require employees to test under the following circumstances:

  • Vaccinated employees, employees who work at home or otherwise do not report to a workplace where other individuals are present, and employees who work exclusively outdoors do not have to be tested.
  • If, by Feb. 9, 2022, an employee has been vaccinated and only has to complete the two-week waiting period to be considered fully vaccinated, that employee does not have to be tested.
  • An employer must not require an employee to undergo testing for 90 days following the date of a positive COVID-19 test or diagnosis by a licensed health care provider. According to OSHA, this exception was added because there is a high likelihood of false positive results following an infection.
  • Like employer-mandated vaccination policies, an employee may be entitled to a reasonable accommodation from their employer if the testing conflicts with a sincerely-held religious belief, practice or observance, or there is a medical condition that impacts the ability to be tested. The same undue hardship analysis applies as to whether the employer must provide a reasonable accommodation: the employer must provide a reasonable accommodation unless doing so would pose an undue hardship on the operation of the employer’s business. For further guidance, OSHA refers readers to the current EEOC guidance on COVID-19

Acceptable tests

To be an acceptable COVID-19 test under the ETS, the test must:

  • Be cleared, approved or authorized, including Emergency Use Authorization, by the FDA;
  • Administered in accordance with authorized instructions; and
  • NOT be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

Examples of acceptable tests include:

  • Tests with specimens that are processed by a laboratory, including home or on-site collected specimens processed either individually or as pooled specimens;
  • Proctored, over the counter tests;
  • Point of care tests; and
  • Tests where specimen collection and processing are either done or observed by an employer.

Antibody tests do not qualify under the ETS as COVID-19 tests.

Costs associated with testing

There are two important considerations employers need to keep in mind when calculating the costs associated with testing:

  1. Who pays for the cost of the test; and
  2. Whether the employee must be paid for the time spent testing.

There are multiple factors that go into answering these questions and, currently, neither OSHA’s ETS nor its Frequently Asked Questions (FAQ) document provide an answer. However, this is what we know now:

  • The ETS states that employers are not required to pay for the cost of weekly COVID-19 testing. However, OSHA reminds employers, “…payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.”
  • In addition to being mindful of any collective bargaining agreements an employer may have in place, it is important for employers to keep in mind that the “other laws” reference in the ETS would include any state laws that require employers to pay for employee “medical examinations” or require the employer to reimburse the employee for certain business expenses.

As an example of such a state law, Wisconsin employers may be required to pay for testing. Wis. Stat. § 103.37(2m) provides that “(2m) No employer may require any employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.” Under this statute, mandatory testing may be viewed as requiring “medical examinations” as a condition of continued employment. As such, employees and employee representatives may challenge employers who choose not to pay for testing and try to shift the cost of testing to employers.

Recently, representatives from the Wisconsin Department of Workforce Development (DWD) have shared that Wis. Stat. 103.37(2m) does not apply when testing is offered as an alternative to mandatory vaccinations and where the vaccinations/testing requirement is mandated by the federal government. It is important to keep in mind that DWD guidance is not determinative, and a reviewing court could elect to disregard the DWD’s guidance altogether and interpret the Wisconsin law as requiring employers to pay for testing.

  • Turning to the issue of paying non-exempt employees for the time spent testing, the ETS does not address the matter directly and instead defers to the U.S. Department of Labor (DOL). In the preamble to the ETS, OSHA notes that “in certain circumstances, the employer may be required, under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested (e.g., if employee testing is conducted in the middle of a work shift).”

Under current DOL guidance, employers are required to pay employees for time spent waiting for and receiving medical attention at the employer’s direction or on the employer’s premises. Does this mean that required testing occurring on an employee’s day off is compensable? While the answer is unclear as of this writing, guidance from the DOL’s Wage and Hour division is expected. Until such guidance is received, it is advised that employers follow the conservative path and pay employees for the time spent testing.

Retention of test records

The employer must maintain a record of each test result provided by each employee or obtained during tests conducted by the employer. Employers must treat these records as medical records and cannot disclose them except as required by the ETS or other federal law. Finally, employers must preserve test result records while the ETS is in effect.

Removal and reporting requirements

If an employee tests positive for COVID-19 while not at work, then the employer must ensure that the employee stays away from the workplace until they receive a negative COVID-19 test. Likewise, if the employee is at work and tests positive for COVID-19, the employer must immediately remove that employee from the workplace. In either case, the employee cannot return to work until the employee:

  1. Receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
  2. Meets the return-to-work criteria in CDC’s “Isolation Guidance” (incorporated by reference, § 1910.509); or
  3. Receives a recommendation to return to work from a licensed healthcare provider.

Required employer policies must be updated by jan. 10

Covered employers have a lot to consider as they prepare to publish their ETS-required policy no later than Jan. 10, 2022. While court challenges to the vaccine mandate are underway, the ETS is in effect and, absent additional court action, employers could be subject to penalties for failing to come into compliance with the requirements of the ETS.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice.

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