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VERIFY: No, employers are not responsible for paying for unvaccinated employees’ COVID tests

October 7, 2021

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WASHINGTON — All over the U.S. employees are being told to either get the COVID vaccine or prepare for frequent testing. It’s a predicament facing the tens of millions of eligible Americans who remain unvaccinated.

Back in September President Biden announced a pending Occupational Safety and Health Administration (OSHA) rule to move the needle on vaccinations.

It will require businesses with 100 or more employees to ensure that their workers are either fully vaccinated or procure a negative COVID test at least once a week.

“This requirement will impact over 80 million workers in private sector businesses with 100+ employees,” the White House website reads.

Some small businesses are voluntarily opting to require that employees get vaccinated are face testing.

Which begs the question, who pays for all those COVID tests—the employer or the employee?

THE QUESTION:

If an employer requires that an unvaccinated employee get periodically tested for COVID-19, is the employer responsible for paying for those tests?

THE SOURCES:

Stephanie Rapp-Tully- partner at Tully Rinckey PLLC
Diane Seltzer- principal at Seltzer Law Firm
Lawrence Gostin- professor and director of the O’Neill Institute for National and Global Health Law at Georgetown University

THE ANSWER:

Employers are not legally required to pay for employees’ COVID tests; however, they may choose to pay for them

WHAT WE FOUND:

Our researchers asked that question to employment lawyers Stephanie-Rapp Tully and Diane Seltzer, and Lawrence Gostin, professor of global health law at Georgetown University.

They all said the onus is not automatically on the employers, even if though it’s the employer requiring the tests.

“I think that the employer could require the employees to pay for it,” Rapp-Tully said. “It certainly will not go on to the federal government as being of cost to them, but it’ll ultimately come down to the employer and what the employer chooses to do.”

Even employees who claim a religious or medical exemption, aren’t guaranteed that their employer will pick up the cost of weekly testing. However, again, some companies may choose to.

“The outcome that I see if the burden of the cost falls on employers shoulders is they’ll say, ‘forget it, we just want to– we’re going to mandate the vaccine, unless there’s a very narrow exception for those who have disabilities and can’t be vaccinated or those who have sincerely held religious beliefs and can’t be vaccinated,'” Seltzer said.

Lawrence Gostin called it a ‘moral argument.’

“There’s a moral argument that if somebody makes the choice not to be vaccinated they have to then incur the cost of the testing, whereas somebody has a sincere religious objection— which is rare— or if they have a medical exemption, then then the employer cover the costs,” Gostin said. “Those are moral arguments, but from a legal point of view, it shouldn’t really matter.”

So we can Verify, no, as of right now, employers don’t have to cover the cost of COVID testing for unvaccinated employees. That expense could fall on the employees’ insurance or employees themselves.

But that could change for businesses with 100 or more employees since we haven’t seen the final OSHA rule just yet.

“When the OSHA standard comes out, it may be silent on the question of who pays, or it just…may be an employer must pay,” Gostin said. “I think, you know if OSHA comes out with a standard that requires large businesses to have a system of vaccination or test, then implicitly that puts the legal burden on [the employer], and that they need to cover the cost.”

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