A major question prior to the publication of OSHA’s ETS was whether employers could require employees to pay for COVID-19 tests. We now know the answer: “maybe.”
The ETS states that it does not require an employer to pay for any costs associated with testing; however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements, or other collectively negotiated agreements. In other words, the ETS does not, by its plain words, preempt other laws on this specific issue.
Therefore, employers must pay for the testing where required by state law. In some states, the payment requirements apply to exempt and non-exempt employees. Even if payment by the employer is not required by state law, the cost of the test cannot reduce the employee’s minimum wage below the higher of the federal or applicable state minimum wage. The payment by the employee likely would be seen as an indirect deduction from pay.
Further, if the testing is in connection with a reasonable accommodation, employers have to pay the cost unless it would impose an undue hardship. While it may be easier, at least under federal law, to meet the standard, do you really want to litigate the issue?
Employers may have to negotiate with unions with regard to requiring that employees pay for the cost of testing. Even if there is no duty, employers should work with the union. There are employee relations issues, too. Employers who pass on the cost to employees may lose employees in the great resignation. Even more, requiring employee payment may provide unions with an organizing issue.
Any questions? Not legal advice
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group . He is also the managing principal of the Duane Morris Institute . The Duane Morris Institute provides training for human resource professionals, in house counsel, benefits administrators and managers at Duane Morris, at client sites and by way of webinar on myriad employment, labor, benefits and immigration matters. Read Jonathan's blog at the Duane Morris Institute or follow him on Twitter @Jonathan_HR_Law .
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