Employers May Have More Flexibility in Creating COVID-19 Testing Policies

Although the Occupational Safety and Health Administration (OSHA) has withdrawn a directive requiring large businesses to test unvaccinated workers for COVID-19, employers can still choose to implement their own vaccine-or-testing rules.

When developing or modifying policies, employers will want to consider their workforce culture and whether safety goals can be achieved through established protocols, such as masking, health screenings, social distancing, business-related travel restrictions, and modified or staggered shifts, said Patrick Dennison, an attorney with Fisher Phillips in Pittsburgh.

Jenifer Bologna, an attorney with Jackson Lewis in White Plains, N.Y., noted that the Occupational Safety and Health Act's general duty clause still requires employers to provide a work environment that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm." So, employers should consider COVID-19 prevention protocols as part of their overall safety plan.

"Not every workplace needs to do testing, but it might be key for certain workplaces," she said.

Here are some considerations for employers as they decide whether to move forward with their COVID-19 testing policies.

Weighing the Pros and Cons

Under OSHA's emergency temporary standard (ETS), businesses with at least 100 employees were directed to track workers' vaccination statuses and ensure unvaccinated workers were tested for COVID-19 at least on a weekly basis starting Feb. 9.

On Jan. 13, however, the Supreme Court halted the rule, and OSHA officially withdrew the ETS, effective Jan. 26. Some employers will move forward with the policies they developed to comply with the rule, while others may alter or drop their plans.

Anna Mason, human resources and corporate office manager for Family Tree Nursery in Overland Park, Kan., said adding a COVID-19 testing program would create more problems than it solves.

"In retail, we don't have the option to work from home, and as a group we learned how to weather the COVID storm in a way that makes sense for us and our customer base," she said. "We had to already adapt early on to keep the ship sailing in a way that meets our customers' needs and employees' needs as best as possible and within reason."

Family Tree Nursery is not alone. Nine out of 10 organizations that responded to a Society for Human Resource Management survey said it will be somewhat or very challenging to implement OSHA's vaccine-or-testing requirements.

While some organizations are ditching their testing plans, others may decide to adjust policies to meet their business needs.

"Some of the pieces of the rule were very difficult to administer," Bologna observed.

The directive included detailed steps for employers to take when testing unvaccinated employees. For example, tests could not be "both self-administered and self-read unless observed by the employer or an authorized telehealth proctor," according to OSHA. Now, employers that want to test workers may be allowed to ask employees to self-administer home tests and report the results.

Employers should note that other federal, state and local rules might apply that either require or restrict vaccination and testing policies.

6 Tips for Employers That Want to Test

1. Determine who to test. "Employers can decide to test all employees or limit testing for employees who are not fully vaccinated," Dennison explained. "For either decision, employers should be prepared to clearly explain the policy requirements and rationale, which should be rooted in maintaining a safe workplace."

As with all vaccination or testing policies, he noted, employers need to consider state laws that may apply. For example, Montana has issued guidance advising employers that if they choose to test employees weekly, they must test all employees because only testing unvaccinated employees would violate anti-discrimination laws based on vaccination status.

2. Decide how to test. Will workers be required to self-test at home or onsite? Will employers use a third party to administer tests? How frequently will employees be required to test?

"The availability of testing may differ geographically, and employers should be mindful of their availability before instituting a policy or setting testing parameters," Dennison said. "In any event, employers will want to require frequent-enough testing that the protocol reasonably catches potential outbreaks of COVID-19, but not so frequent that it seems simply punitive."

Employers must also consider the consequences for failing to comply with the policy, Bologna noted. If employees have trouble accessing tests, for example, will they be given some leeway under the policy?

3. Monitor for wage and hour compliance. Employers need to ensure testing protocols comply with applicable wage and hour laws because the time spent receiving employer-required tests should generally be treated as compensable, Dennison explained. Additionally, several states have laws predating the pandemic that require employers to pay for mandatory medical tests, while other states require employers to reimburse employment-related expenses.

4. Develop procedures for handling positive tests. If testing is performed onsite, the employer needs to ensure employees who are waiting in line aren't aware when someone tests positive, said Vanessa Kelly and Anne-Marie Welch, attorneys with Clark Hill in New York City and Birmingham, Mich., respectively.

Regardless of vaccination status, they said, employees who test positive should be promptly removed from the workplace or told not to enter the worksite if they are tested elsewhere. Employers should also check the latest guidance from the Centers for Disease Control and Prevention for isolation and quarantine recommendations.

5. Keep employee information private. Employers must keep medical records separate from employee personnel files and ensure compliance with applicable privacy and data security laws, said Melissa Crespo, an attorney with Morrison & Foerster in Washington, D.C. She noted that the Health Insurance Portability and Accountability Act (HIPAA) does not prohibit businesses from collecting COVID-19 test results. HIPAA does not apply to employers or employment records, including employment records held by covered entities or business associates.

"However, there are a number of U.S. state laws that govern the use and disclosure of personal information," Crespo said. "Employers should take steps to understand which state laws are applicable and ensure they have implemented an appropriate information security program to protect health information like test results."

She recommended that employers collect and retain only the minimum information necessary and destroy it when it is no longer needed.

6. Consider reasonable accommodations. "Employers should expect requests for reasonable accommodation from vaccination, testing and other safety measures like masking," Dennison said. They should develop a comprehensive reasonable accommodation policy that provides individualized, confidential consideration of each request.