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...
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