Who pays for COVID-19 tests when an employer requires regular testing?


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Early last week, California and New York City required their workers to get a COVID-19 vaccination or mask up and submit to regular testing. On Thursday, the federal government issued the same edit to its employees.

Then on Monday, the State of New Jersey announced that all workers in certain state and private health care facilities and high-risk congregate settings must be fully vaccinated against COVID-19 or test weekly.

The vaccine is free. But, what about the COVID-19 tests?

The federal, state, and local requirements aren’t that detailed. Regardless, they only impact public sector workers. Therefore, the rules are different should you apply a similar vaccination/testing requirement for your private-sector workplace.

So, first, you may want to check with your insurance carrier. Employees with separate health insurance can do the same. The carrier(s) may cover the testing. Problem solved.

Otherwise, the U.S. Department of Health and Human Services has this resource listing free testing sites by state.

Absent insurance coverage or a free test, as my blogging buddy Jon Hyman noted in this August 2020 post, “EEOC guidance strongly suggests that the [Americans with Disabilities Act] requires employers to cover the costs of COVID-19 testing. The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA provides that an employer must pay for all medical-exam-related costs when an employer requires the examination because the employer reasonably believes the employee poses a “direct threat.” According to the EEOC, “COVID-19 poses a direct threat.” Therefore, the ADA would require an employer to cover the costs of diagnostic testing related to keeping that direct threat out of the workplace.”

Or, you have another option.

Don’t permit employees to test weekly as an alternative to getting the COVID-19 vaccine.

In his press release announcing the new NJ vaccine mandate, Governor Murphy underscored that “[p]rivate facilities are strongly encouraged to consider instituting requirements above and beyond the baseline that will be required by the State.” So, while testing and masking can be a reasonable accommodation for people with medical or religious issues, most employers may not have to provide those alternatives to workers.

Vaccine or bust.

As for whether to pay employees for the time spent getting tested, you may want to refer to yesterday’s blog post. Or, better yet, call your employment lawyer.

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