Will OSHA Require Unvaccinated Workers to Pay for COVID Testing?

Throughout its 51 year history, OSHA has required employer to pay for equipment, tests and items required by OSHA standards (with some minor exceptions).  Yesterday, intrepid Bloomberg reporter Ben Penn reported that anonymous sources had revealed that :

The Biden administration’s highly anticipated vaccine mandate rule for private-sector employers will allow businesses to force workers who refuse to get the Covid-19 shot to pay for required weekly tests and masks….The emergency rule…will give employers the option of paying for testing and masks for unvaccinated workers or compelling those employees to foot the bill themselves….Employers will be required to absorb testing and mask costs in cases where a worker qualifies for an exemption to vaccination under federal law.

The employer would have the option of paying for the test instead of the workers, which should provide room for bargaining in unionized facilities.  And for those employees who receive religious or other legal exemptions from vaccination, the employer would pay for weekly testing and masks.

Bad Ideas

This is yet another bad idea coming out of OSHA related to this standard. OSHA has always required employers to pay for any personal protective equipment, testing or other measures required by OSHA standards, with the narrow exception of protective footwear and prescription safety eyewear. Allowing employers to require workers to pay for testing and masks would be unprecedented.

We’ve already know that this standard will exempt small businesses under 100 employees, which will mark the first time in OSHA’s history that the agency has issued a safety or health standard with such an exemption. (Some OSHA recordkeeping and reporting regulations exempt small employers.)

It is unclear how OSHA will legally justify the small business exemption. It seems clear that OSHA will not be able to argue that workers in small businesses are at less “grave danger” than workers in larger businesses. True, small business employees may be exposed to fewer potentially infectious co-workers. but many small businesses deal with the public. So even if you’re only exposed to 3 co-workers, you could be exposed to dozens or hundreds of unvaccinated, unmasked customers every day.

OSHA could justify the small businesses exemption by arguing that it is economically infeasible for small businesses to pay for testing (and masking) of their unvaccinated employees. But relieving employers of that obligation, which now seems to be OSHA’s intention, would seem to undermine the feasibility argument as well.

Neither of these are new ideas. Businesses have never liked paying for employees’ equipment and small business interests have always argued that small businesses should be exempted from OSHA regulations. Small businesses even have an early bite of the apple with the SBREFA process that requires OSHA (and a few other federal agencies) to assess the impact of a planned standard on small businesses even before the official proposal is issued for public comment. (Labor, you may note, gets no similar early bite of the apple.)

But over the last half century, OSHA has managed to fight off these attacks. Until now.

Will this create a slippery slope for small business exemptions and worker payment for safety measures in future OSHA rulemakings? The proverbial camel’s nose has now appeared under the tent, but we don’t know yet whether the rest of the camel will follow.

So why is OSHA doing this?

If it seems like such a bad idea, why is OSHA doing this? Well, we won’t know the reasons for sure until the standard is released, along with the Preamble which explains what’s in the standard and why.

There are at least two possible reasons:

1. Being obligated to pay for weekly testing will encourage more employees to get vaccinated. It is clearly in the interest of public health (and that Biden administration) to maximize the number of people that will be vaccinated. That being said, this OSHA ETS is not a vaccination mandate; it is a workplace safety mandate. The goal is to have a workplace that is as free as possible from the risk of exposing employees to COVID-19, and vaccines and frequent testing are two means of getting there.  Employees are not required to bear the costs of one method of ensuring a safe workplace (vaccinations), but employees are required to bear the costs of another method of ensuring a safe workplace (testing and masks.) Does that make sense?
2. Relieving employers of the burden of paying for testing reduces the amount of political resistance that standard will generate. This is undoubtedly true. But OSHA is required to set standards that assure “to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity.” Nothing in the Occupational Safety and Health Act says anything about OSHA setting standards that assure that OSHA will not suffer political opposition.
3. ???? There may be other reasons that I haven’t thought of. One thing about working at OSHA all those years is that there always seemed to legal reasons that we couldn’t do what we wanted to do, and legal reasons that forced us to do things that we didn’t want to do.  (And, of course, legal reasons why we could do the things we wanted to do.)

Inconsistency with other Requirements

There will soon be four different programs addressing COVID-19 protections for worker in this country:

1. OSHA’s June Emergency Temporary Standard covering health care workers issued last June.
2. Federal Contractor and Subcontractor vaccine mandate issued last month.
3. Centers for Medicare and Medicaid (CMS) vaccine mandate for health care workers
4. OSHA’s vaccine-or-test Emergency Temporary Standard

These will result in a patchwork of requirements. The health care worker ETS, for example, requires daily screening of employees and section 1910.502(l)(1)(ii) states that “If a COVID–19 test is required by the employer for screening purposes, the employer must provide the test to each employee at no cost to the employee.”

The contractor guidance also applies to remote workers. It is unclear whether the OSHA standard will apply to remote workers. The Federal contractor guidelines require vaccinations for employees of all federal contractors and subcontractors and have no testing option. The CMS regulation, which will cover all health care facilities that receive Medicare and Medicaid funds, will also have no testing option. Only the OSHA standard is likely to have a small business exemption.

That’s about it for now. But tomorrow is another day.