One of the most important decisions employers will need to make by the December 6 effective date for the Occupational Safety and Health Administration (OSHA)’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) is whether to allow all (or if an employer desires, only certain classes of) employees to wear an approved face covering and produce a negative COVID-19 test at least weekly in order to return to a company worksite. For employers that decide to allow the weekly testing and face cover alternative to vaccination (and remember, offering the alternative generally is not required), employers will also have to decide whether they or their employees will pay for the testing. When we polled the audience on a recent Mercer webcast, we found that about half have not yet made a decision. However, nearly 40% have already determined that they will offer weekly testing as an alternative to vaccination, although only 15% will cover the cost or provide free onsite testing. 10% say that testing will only be allowed as an accommodation for those granted medical or religious exemptions to the vaccination mandate.
Judging by the hundreds of questions we received during our webcast, deciding whether to allow the testing alternative isn’t a simple decision for many employers. The cost of testing – which ranges from $10 to $150 or more per test, depending on the type -- can be prohibitive. Although OSHA states that under the ETS guidance employers need not pay for the COVID-19 tests, OSHA also warns employers that other laws, regulations and collective bargaining agreements may require an employer to do so. These may include state laws that require employers to generally pay for any type of mandated medical test, and federal laws such as the ADA or Title VII that may require employers to pay for testing if it’s used as a reasonable accommodation for those with medical or religious exemptions to getting vaccinated.
Even employers that choose not to allow testing as an alternative for employees to return to the worksite should consider offering it as an accommodation to those requesting an exemption to the vaccine. Webcast attendees asked us what to do about sincerely held religious objections to testing. These requests should be evaluated just like any other exemption request, but it’s worth remembering that it doesn’t have to be all or nothing when it comes to testing. For example, offering a saliva-based diagnostic test in lieu of the more invasive antigen test that requires a nasal or throat swab may be a reasonable accommodation.
The other testing provision in the ETS causing consternation is the requirement that self-administered or self-read tests be observed by the employer or proctored by a telehealth provider. Capacity constraints to either observe the tests internally or find a third-party vendor to proctor the tests -- coupled with testing supply shortages in some parts of the US -- will weigh heavily in an employer’s decision whether to offer the testing option.
These challenges have prompted some employers to consider different testing approaches for different classes of employees (for example, essential vs. non-essential workers) or at different worksites (for example, requiring vaccinations at the corporate headquarters, but allowing the testing alternative at a manufacturing plant or retail location). A segmented approach may help alleviate the cost burden and minimize operational challenges due to limited supply in certain locations.
One final takeaway from the webcast poll is that employers are starting to make plans and move forward, even in light of litigation challenging the ETS. As the numbers show, employers are choosing different paths based on what they think is best for their employees and their businesses. Wherever you land on this big decision, you won’t be alone.