Last week President Biden announced that he was directing OSHA to develop and publish an emergency temporary standard requiring employers with 100 or more employees to require employees to get a COVID-19 vaccination or undergo weekly testing. According to the White House, this standard would apply to 80 million private sector employees. Ohio employment lawyer Jon Hyman wrote an interesting analysis on why OSHA’s standard is unlikely to pass legal scrutiny.
Assuming that the standard passes legal muster, there are main significant practical problems with a covered employer’s ability to comply. Assume that 30 percent of the 80 million workers the White House estimates will be covered by the standard refuse to be vaccinated and/or are granted a religious or disability related exemption. That is 24 million workers that will be required to test weekly to work.
There are currently long wait times for COVID-19 testing. And, the pre-mandate demand for testing is limited to those having symptoms or needing a test because had close contact with someone testing positive. These are not ongoing, recurrent testing but merely one-time tests to confirm or rule out a COVID-19 testing and there are still lengthy wait times for such testing. There is insufficient testing capacity to test 24 million workers weekly. Similarly, what about employees that work in remote locations? Oil field service workers routinely work seven days on and seven days off in remote locations. These work locations make it difficult, if not impossible for the workers to access testing locations. Employers will be placed in the position of placing employees who cannot get tested on leave of absence jeopardizing the employer’s ability to operate its business or violate the OSHA standard and run the risk of stiff fines. And employees, who have objections to vaccination and are unable to get weekly tested, are likely to be placed on unpaid leave placing burdens on the worker and his or her family.
Similarly, there are many unanswered questions raised by the President’s announcement that will likely have to wait until the publication of the standard such as: who will pay for the testing? Is time spent traveling to/from and waiting to be tested compensable for non-exempt employees? What records must the employer maintain to show compliance with the standard? What tests are acceptable (i.e., are the rapid, over the counter tests acceptable?
Hopefully OSHA will answer all of these questions and provide clarity on what is require of employers so that they can continue to operate their business while not subjecting themselves to substantial penalties.