The new rules released by OSHA on Thursday have left legal experts wondering how their corporate clients will implement weekly COVID-19 testing for unvaccinated employees before the Biden administration’s Jan. 4 deadline.
Temporary guidelines issued by OSHA require companies with 100 or more employees to vaccinate their workers or test them weekly for COVID-19 if they are not vaccinated and go to shared workspaces.
Employers are still unsure whether testing availability is adequate, or how coverage of the costs of regular testing will unfold in the coming weeks, according to David Barron, Texas labor attorney at Cozen O’Connor.
Barron said most of the companies he has worked with don’t think there are enough tests available if even a small percentage of the private workforce starts looking for COVID-19 tests every week.
“It’s going to be a real problem,” he said.
The new rules apply to around 84 million workers in the private sector. Barron said that even if 10% of private sector workers were not vaccinated, companies would need millions of tests nationwide every week.
Part of the Biden administration’s plan, which the White House first announced on September 9, included an agreement with major retailers to provide in-home COVID-19 testing at cost for three months. Two months have passed since then, and home testing kits as well as testing appointments have become difficult to find just a month after the announcement.
OSHA documents released Thursday are nearly 500 pages long, so legal experts and employers will need time to understand all the rules.
They include a provision that requires unvaccinated employees to cover the cost of their own regular tests. But under the Fair Labor Standards Act, employers should still compensate employees for the time it takes to get tested, said Dallas employment attorney Rogge Dunn.
Dunn calls this a “choose your poison” scenario.
Employers can either keep workers at bay to avoid OSHA’s mandate, perform on-site testing and take potential liability for a worker’s claim if something goes wrong, or risk lost productivity for off-site testing. site, Dunn said.
“If you have a lot of employees who go once a week ‘off site’ to be tested, I think the law is going to be that you’re going to have to pay them for that time,” Dunn said.
Of course, not all industries are conducive to remote working, and Dunn said most of his clients “aren’t in love” with the ability to work remotely.
Employees who work away from home will be exempt from vaccine and testing requirements, Dunn added. It is considering this exemption applying to certain workers in fields such as construction.