With the federal vaccine mandate on the horizon, businesses need to know how to test unvaccinated employees for Covid-19. If they don't comply, hefty fines may ensue.
The Department of Labor's Occupational Safety and Health Administration (OSHA) is requiring that all employers with 100 or more employees ensure each of their workers is fully vaccinated, or passes Covid-19 tests on a weekly basis. Employees who test positive cannot come into work.
To provide employers with sufficient time to comply with the new regulations, OSHA will not issue any citations before January 10. And it will not issue citations for noncompliance with testing requirements before February 9. This means businesses have a little more than a month to figure out how to request and record Covid-19 tests from any unvaccinated employees.
Here's what you need to know about testing to comply with the vaccine mandate:
Employers don't need to pay for testing
OSHA's emergency standard does not require businesses to pay for Covid-19 tests for unvaccinated employees. However, employer payment may be required by other laws, regulations, collective bargaining agreements, or other negotiated agreements. Employers can also choose to pay for testing.
Free testing is available for employees
President Biden this week announced a plan to expand at-home testing. New sites for distributing at-home test kits will be set up across the country; the administration plans to purchase a half-billion of these rapid tests. The tests are free. Employees with private health insurance can also request reimbursement for at-home Covid-19 tests they buy at pharmacies and elsewhere, which typically cost from $15 to $40.
Employees must tell businesses if they test positive, and businesses must alert everyone
If an employee tests positive, or is diagnosed with Covid-19, make sure they notify their employer immediately. If someone who tests positive shows up to work, employees could rightfully sue a company for reckless endangerment and negligence if an employer does not tell them about a positive case.
The infected employee must also be removed from the workplace, regardless of vaccination status. The employee has to remain home until they meet the requirements to return to work, which for most people is: 10 days after symptom onset; resolution of fever for at least 24 hours, without the use of fever-reducing medications; and improvement of other symptoms, according to the Centers for Disease Control and Prevention (CDC). Health care providers may recommend 20 days or more of isolation if a case is severe.
Covid-19 test records must be kept; if not you may be fined
OSHA requires employers to make vaccine documentation and any Covid-19 testing results available for examination. These documents must be kept confidential and in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Fines for repeated and willful violations of the mandate are $136,532, with a minimum penalty of $9,753. The legislation sets a maximum penalty of $13,653 for any single serious violation, and a further penalty of not more than $13,563 per day for a failure to abate the violation (though the maximum penalty for this abatement failure is capped at 30 times the daily penalty).
Employee tests must pass OSHA standards
In accordance with OSHA, all employee Covid-19 tests must be cleared, approved, or authorized by the Food and Drug Administration (FDA). The tests can not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. This means that all tests submitted to the employer need to include a third party. This includes tests that are processed by a laboratory (including home or onsite collected specimens, which are processed either individually or as pooled specimens) or proctored, over-the-counter tests, point of care tests, or tests where collection and processing is either done or observed by an employer.
Be wary of at-home tests
There are tools, such as apps, that can be used to self-administer and "digitally verify" at-home tests with the use of a compatible smartphone. An employee would take a test at home and then verify the results using the technology. Be aware that this method goes against section 1910.501(c)(iii) of the OSHA rule, and may enable infected employees to avoid registering a positive test. To comply with OSHA, all test results must be verified by a third party, so using this method may result in fines.