November 12, 2021
An employer with 100 employees, of whom 20% are not vaccinated (according to Nov. 9, 2021 CDC data, 80.9% of Oregon’s adult population are partially or fully vaccinated) will spend upward of $12,000 per month to supply weekly COVID-19 tests to their unvaccinated employees should OSHA’s vaccine-or-test mandate survive its numerous legal challenges. (OSHA Mandate Status Update: According to the Department of Justice, a lottery will be held on or around November 16 to determine which circuit court will hear the consolidated challenges from the 5th, 6th, 7th, 8th, 11th and D.C. Circuits. Yesterday (Nov. 11), Oregon OSHA spokesperson Aaron Corvin said it is too early to say how the timeline will play out in Oregon.)
Many thousands of federal contractors, healthcare workers, and public employees are already subject to mandatory vaccination policies. Individuals granted religious and medical exemptions from the vaccine are already generally (subject to employer policy) required to undergo weekly COVID-19 testing. Various entities around the state have reported 3 – 12% of their total workforce have been granted exemptions. However, the OSHA Emergency Temporary Standard (ETS) grudgingly allows employers to choose a Vaccine-or-Test policy, which will allow employees to forego the vaccination without having to request a medical or religious accommodation. This will certainly increase the number the individuals subject to mandatory weekly testing.
While the ETS does not require employers to pay for such tests—indeed, some government spokespersons seemingly revel in the idea that making people pay for their own tests each week will further encourage them to get vaccinated—various provisions of the FLSA, state labor laws and collective bargaining agreements* leave employers on the hook for the additional costs of the tests, plus possibly the time away from work each week to get the testing done. *On Wednesday, the NLRB issued a Memo (OM 22-03) outlining their position on employers’ bargaining obligations under the OSHA ETA—in summary, covered employers have bargaining obligations regarding aspects of the vaccine mandate that affect terms and conditions of employment.
According to the EEOC, an employer administering a COVID-19 test is performing a “medical test” that is “job-related and consistent with business necessity.” Under the FLSA, if an employer requires COVID-19 testing during the workday, the employer must pay for the test and the time spent testing (Q7&8). Further, Oregon law (ORS 659A.306) requires employers to pay the cost of any medical exam required as a condition of continued employment. However, what is unclear is whether an employer could take the position that the only thing required is a COVID-19 vaccination and that the weekly testing is an optional alternative, therefore a choice that need not be paid for.
BOLI has not yet been called upon to adjudicate a situation where an employer has refused to pay for COVID-19 testing on the grounds that it is a non-compensable employee choice. The more an employer involves itself in the “when, where and how” of testing, the more likely the agency would rule the test a “requirement”. For instance, if the employer’s policy is to “provide proof of a current negative test result every week” and the employee can test anytime and anywhere, perhaps the employer does not have to pay for it. However, to ensure employees are tested properly and on time, the employer might choose to test at work or send employees to a specific location on a specific day—in which case the employer would have to pay for the test and the time.
Employers are right to be concerned about the cost of this mandate. At an average cost of $148 per FDA-approved test (a recent Kaiser Family Foundation study found prices ranging from $20 - $1,419 per test, not including the provider visit and specimen collection), a 100-life employer where 20% of the workforce chooses not to get vaccinated is looking at a cash outlay of nearly $12,000 every four weeks. This amount does not include any required compensable time for employees to get the test, nor the additional administrative burden it places on the employer to track these weekly test results.
We have already seen advertisements from multiple online vendors claiming they have “free” COVID-19 testing solutions for employers ready to go (Call Now! This Crazy Deal Can’t Last! First 100 Callers Get Free Steak Knives!). These entities are advertising that they will bill your employees’ insurance or, if they don’t have insurance, will bill the federal government under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES). Sadly, these Acts only require insurers or self-funded health plans to cover testing “when medically appropriate for the individual, as determined by the individual’s attending health care provider.” Specifically, “testing conducted to screen for general workplace health and safety (such as employee “return to work” programs) . . . or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19 or another health condition is beyond the scope” of the FFCRA.
Unless the Biden administration plans on requiring insurers and health plan issuers to cover the cost of employment-related COVID-19 testing—a move that would be strongly contested by insurers and will only cause insurers to pass the costs on to the consumer via higher premiums—employers are on the hook. One has to wonder if the drafters of the ETS are not counting on the fact that employers, facing these kinds of costs, will forego the Vaccine-or-Test option for the government’s strongly-preferred Vaccine Mandate that will only allow those with statutorily guaranteed exemptions to opt-out.
From a dollars and sense perspective, the difference in cost to test the 5% of your workforce who have a qualified medical or religious exemption versus the 20% or more who will choose to test rather than vaccinate is a genuine incentive not to allow the Vaccine-or-Test option.
As you begin preparing for the administrative, logistical, and monetary components of implementing a vaccine mandate program and have questions about ensuring your policies comply with workplace and other applicable laws, contact your Bullard Law attorney. We will continue to monitor these developments and provide updates as the federal ETS moves through the court system and our local state OSHA plans weigh in.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.