Who pays for testing under vax-or-test mandate?
Gavel to Gavelpublished in The Journal Record | December 2, 2021
Employers with more than 100 employees are watching legal challenges around the country to see if OSHA’s federal regulations putting in place a COVID-19 vaccination mandate will be upheld in whole or in part. In the meantime, businesses should be gearing up for the possibility that a vaccine requirement may be in place for 2022. As employers weigh their vax-or-test options and the direct and indirect costs associated with each, one question frequently arises: “Who pays for the COVID-19 testing?”
OSHA’s vaccine mandate provides two alternatives for businesses covered by the federal regulation. An employer may have a policy that requires all employees to be fully vaccinated as a condition of employment. Under the “fully vaccinated” option, the employer must consider requests from employees for an exception to the vaccine requirement based upon their medical circumstances (as required by the Americans with Disabilities Act) or sincerely held religious beliefs (as required under Title VII). Alternatively, an employer may adopt a policy that permits unvaccinated employees to continue working, so long as they wear a mask and submit to weekly COVID-19 testing.
But who pays for the weekly testing, if an employer opts for the second alternative? Answer: In Oklahoma, it’s the employer.
OSHA’s vaccine mandate does not require employers to bear the cost of testing; however, the regulation specifically notes that some state laws may impose that requirement. In Oklahoma, Title 40 O.S. Section 191 prohibits a business from requiring applicants or employees to pay for mandatory medical examinations. In the past, this law has been applied to such things as fitness for duty exams or drug testing, and it has not mattered whether the testing was the employer’s idea or required by an outside authority or mandate. We should assume Oklahoma’s Department of Labor will likely hold that employers will be responsible for paying for the COVID-19 testing of their Oklahoma employees. If you are a multi-state employer, be sure to check the laws of each state where your employees work to determine whether you will be responsible for their testing expenses.
Even though lawsuits challenging the enforceability of OSHA’s vaccination regulations are ongoing, employers are advised to take all actions necessary to comply with the regulation’s deadlines rather than take a wait-and-see approach.