How will testing of unvaccinated employees work under Biden’s vaccine mandate?

New government rules requiring COVID-19 vaccination or weekly testing raise a critical question for companies trying to implement the directive: will there be enough testing for everyone?

The Occupational Safety and Health Administration on Thursday released rules that companies with 100 or more employees must follow before the Jan. 4 deadline. Their workers need to be vaccinated or tested every week if they are not vaccinated and go to shared workplaces.

David Barron, a Texas labor attorney with law firm Cozen O’Connor, said most companies he’s worked with aren’t convinced there will be enough tests available if even a small percentage of workers choose tests over shots.

“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 only 10% opt for nationwide testing, businesses will need millions of tests every week.

As of this week, 64% of Texans ages 12 and older are fully vaccinated, according to Texas Health and Human Services. This figure, of course, includes some Texans who are not of working age.

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 test kits as well as test appointments were hard to come by at the time of the announcement, according to KTVT-TV (Channel 11).

OSHA documents released Thursday total nearly 500 pages, so legal experts and employers will need time to digest the details.

This includes a provision requiring 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 [offsite] 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.

Nursing homes and homes for the aged restricted access to older people during the height of the pandemic, forcing loved ones to go through closed windows.

Not all industries are suitable for remote working, and Dunn said most of his customers are “not in love” with the remote working option.

Employees who work outside will be exempt from vaccine and testing requirements, Dunn added. It contemplates that this exemption apply to certain workers in fields such as construction and oil and gas.

He also advises Texas businesses to comply with federal rules regarding conflicting orders issued by Governor Greg Abbott. Last month, Abbott said businesses in Texas cannot order their employees or customers to be vaccinated against COVID-19.

Violation of Abbott’s order carries a fine of $ 1,000 per violation, much less severe than the penalties associated with the federal mandate.

“If I’m doing a risk analysis, I’d rather be wrong and pay a $ 1,000 fine than being wrong and a $ 136,000 fine,” Dunn said. “The federal [mandate] has far greater consequences.

Fines are not the only concern of employers.

“There’s a lot of talk about aggressive enforcement,” said Barron. “What I think of this administration is probable.”

The application will be initiated by employee complaints filed with OSHA. The agency has only around 1,850 inspectors to supervise 130 million workers in 8 million companies.

Passengers line up to book their canceled American Airlines flight in DFW Airport Terminal D on Friday, October 1, 2021 (Tom Fox / The Dallas Morning News)
Airlines companies

American Airlines Postpones Vaccine Mandate Until After White House New Deadline Vacation

American Airlines extended its deadline for employees to be vaccinated against COVID-19 by more than a month after the White House issued updated rules on Thursday that aligns the mandatory start for federal contractors and companies to more than 100 employees. now have until Jan. 4 to submit proof of vaccination or get an exemption and has said it will extend the window for employees who get vaccinated to receive an extra day of vaccination next year and a $ 50 voucher , according to a note from CEO Doug Parker and President Robert Isom.

Yet legal experts say that employers who fail to meet the mandate do so at their own risk.

“When OSHA steps in on Issue # 1, they’re going to ask questions about any other safety breaches,” Dunn said. “I’ve often seen OSHA’s investigations of one safety issue extend to multiple safety issues. And it’s an employer’s worst nightmare.

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