Tucked in the nearly 500-page document detailing the federal government's COVID-19 vaccine and testing requirements for millions of American workers was an unexpected provision — employers don't have to pay for unvaccinated workers to get tested.
It's a move federal authorities have never made before, experts said.
That's not to say every employee will foot the bill for COVID-19 tests if they refuse a vaccine. A patchwork of state and local laws combined with federal mandates issued at the height of the coronavirus pandemic may force their employer or health insurer's hand, according to the ruling.
Still, Jordan Barab told McClatchy News workers having to pay for those kinds of tests is "unprecedented in OSHA's history."
OSHA is the Occupational Safety and Health Administration, a federal agency tasked with safeguarding America's workplaces. Barab was deputy assistant secretary of OSHA for seven years during the Obama Administration and helped the agency start work on an infectious disease standard in 2009.
That work was stalled under the Trump Administration, he said, but OSHA has since put it back on the active regulatory agenda.
The coronavirus pandemic, however, shifted the agency's focus.
Biden's vaccine, testing mandate
In September, President Joe Biden announced a workplace vaccine and testing rule under a six-part plan to slow the spread of the coronavirus as the delta variant raged across the U.S.
Biden directed OSHA to draft the rule as an emergency temporary standard, or ETS, for employers with 100 or more employees, and OSHA released the final version Nov. 4. The standard took effect Friday after it was published in the federal register.
Under the emergency standard, covered employers must develop and enforce policies mandating all workers get vaccinated against the coronavirus. Some employers may elect to allow unvaccinated workers to get tested for COVID-19 every week instead, OSHA said.
But the ETS does not require those employers to pay for the tests.
Barab said that kind of decision at OSHA hasn't happened before. The agency has never required employees to pay for any of the requirements of an OSHA standard — from personal protective equipment, or PPP, to testing and monitoring, he said.
But there are some exceptions, Travis Vance, co-chair of the Workplace Safety and Catastrophe Practice Group at the national law firm Fisher Phillips, told McClatchy News.
OSHA doesn't require employers to pay for certain kinds of PPP that employees can wear outside of normal job duties, such as long-sleeve shirts or non-specialized work boots, he said. That's the same approach the agency has taken with testing for COVID-19.
"Testing helps you in and out of the workplace," he said.
The payment provision is also intended to save money for companies with a lot of employees, which are "looking at big price tags" if they have to pay for tests for every worker who doesn't get vaccinated, Vance told McClatchy News.
'Really bad precedent'
The argument OSHA made in issuing its emergency temporary standard is that COVID-19 vaccines are better for the public health than weekly testing, Barab said. But there are two things he sees wrong with that.
"If OSHA believes that vaccines are truly much more effective than weekly testing, then OSHA shouldn't have given the option for weekly testing," he said.
Barab said it also sets a "really bad precedent for future OSHA standards."
That's because companies have long lobbied OSHA to exempt small businesses from federal standards and get employees to pay for more protective equipment — which Barab said has "pretty much always failed." Now, those companies have something to point to when OSHA issues future workplace health and safety standards, emergency or otherwise, he said.
Vance said OSHA's testing option tries to "take away arguments from employers" who might challenge the emergency temporary standard.
OSHA didn't frame the testing option as a mandate and is not requiring companies to cover the cost, he told McClatchy News. That means employers bear very little burden when it comes to implementation, Vance said.
Still, OSHA allowing employers to pass the buck doesn't mean all workers who choose not to get vaccinated will have to pay for weekly COVID-19 tests.
Exemptions to paying for tests
The emergency temporary standard carves out an exemption for state and local laws as well as collective bargaining agreements that place the onus with employers to cover the cost of such COVID-19 testing. Some states that bar employers from passing the cost of medical testing to their employees include California, Illinois and Kentucky, Vance told McClatchy News.
An employer also can't ask workers to pay for regular coronavirus tests if it causes their pay to fall below minimum wage, he said, pointing to laws and regulations under the Fair Labor Standards Act and the Equal Employment Opportunity Commission.
Vance said employers will want to make sure they're on solid ground before they pass the cost of testing on to their workforces, comparing the patchwork of federal, state and local laws to "Swiss cheese."federal regulations passed last year