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ODOL: Employers likely responsible for paying for COVID-19 testing under Oklahoma law

published in McAfee & Taft EmployerLINC Alert | November 5, 2021

Yesterday, following OSHA’s release of federal regulations implementing a workplace COVID-19 vaccination mandate, we reported that, effective January 4, 2022, employers with 100 or more employees would be required to establish, implement, and enforce a policy that either ensures their workers are fully vaccinated or requires all unvaccinated workers to wear a mask and submit to weekly COVID-19 testing.

You can read the full alert here.

State law prohibits charging employees for mandatory testing

While the new federal rule itself does not require the employer to pay for any costs associated with testing, Oklahoma employers should be aware that they likely will be responsible for paying for all COVID-19 testing. Under Oklahoma’s Protection of Labor Act (Title 40 O.S. Section 191), employers are prohibited from requiring any applicant or employee, as a condition of employment or continued employment, to pay, either directly or indirectly, any part of the cost associated with a mandatory physical or medical examination.

In the past, this provision has been applied with respect to other forms of mandatory testing requirements, such as workplace drug testing, and Oklahoma Department of Labor administrative law judges have found it is applicable irrespective of whether the testing requirement is the employer’s alone or placed on the employer by an outside authority, such as a federal mandate. Based on this history, the ODOL will likely conclude that employers are responsible for paying for the testing under Oklahoma law.

Next steps for employers

While all employers will need to weigh their options as it pertains to implementing the federal COVID-19 vaccination mandate — specifically, whether to ensure all employees are fully vaccinated or submit to weekly testing and other safety protocols — Oklahoma employers, in particular, will also need to consider the potential administrative and financial costs associated with weekly COVID-19 testing programs for unvaccinated workers. For assistance in navigating the new “COVID-19 Vaccination and Testing; Emergency Temporary Standard” rule issued by OSHA, please contact your McAfee & Taft Labor & Employment attorney.