Biden wants unvaccinated workers to pay for Covid testing. Companies could still end up footing the bill.

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Already, several Republican governors have filed lawsuits challenging the employer’s vaccine mandate, as have the Republican National Committee, the Job Creators Network small business group, and several individual businesses. A federal appeals court on Friday temporarily suspended the policy, which was due to go into effect in January, in response to a lawsuit brought by the Texas Republican attorney general.

The vaccine mandate “is a federal overshoot that will only create more confusion and legal challenges,” Sen. Richard Burr (RN.C.), senior member of the Senate Health Committee, said in a statement to POLITICO. “This move proves that the administration continues to be disconnected from American workers and threatens to exacerbate labor and testing shortages. Heavy warrants will not solve this problem. Instead, the administration should promote cooperation with companies and workers, with clear communication, transparency and trust. “

And some worker advocates who generally back the Biden plan are concerned about the administration’s decision to charge unvaccinated people for their own masks and tests at work, given that OSHA typically requires employers to pay all costs. safety related to work.

“It is very unfortunate that this new rule does not force employers to pay for face masks, or for the cost of testing for workers who choose not to be vaccinated,” said Jessica Martinez, co-executive director of the Council. National for Occupational Safety and Health. “Charging these costs onto workers is a mistake and an unprecedented departure from all previous OSHA standards. “

A spokesperson for the Department of Labor said that “the payment of costs associated with testing in accordance with other laws or regulations not associated with the OSH Act is beyond the authority and jurisdiction of OSHA,” in response questions about employer concerns.

But the spokesperson also noted that some companies might choose to pay for the tests, in part or in full, “to keep employees in a tight labor market.” Others could try to charge affected employees for the screening, the spokesperson added.

Biden’s policy will require companies with more than 100 employees to verify that their staff are vaccinated against Covid-19 or to undergo weekly tests. The Occupational Safety and Health Administration estimates that more than 75 million workers – nearly 90 percent of those covered by the regulation – will be vaccinated when the requirement goes into effect. That would leave an estimated 9 million holdouts, most of whom the government says will work in person rather than remotely.

The Equal Employment Opportunity Commission has previously clarified that employers can require vaccinations at their workplace, provided they provide accommodations for workers who say they cannot get vaccinated in the workplace. because of their religious beliefs or a disability.

These accommodations are required by the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, which allow employers to refuse only if they have “undue hardship” or if providing an accommodation would present a “difficulty or expense. important ”.

But reaching that threshold is difficult, and lawyers say they are skeptical about the cost of testing.

Employers usually bear the cost of accommodations, explained Ian Carleton Schaefer, president of Loeb and Loeb’s employment and work practice in New York City, because an employee could argue that he is financially penalized for his disability. or religious beliefs, by being required to pay for their own reasonable accommodation.

“I think employers will find it difficult to pass the costs on to employees who properly fall under these exemptions,” Schaefer said of the costs of the Covid-19 testing.

Ed Egee of the National Retail Federation said he expects some of its members to still cover the costs of the tests, given the lengthy process it takes to verify whether a worker’s accommodation request is valid.

Employers will also likely have to cover the cost of testing if they require a worker to be tested during the working day, under current overtime and minimum wage laws.

And it’s not clear whether insurance companies will start covering Covid-19 workplace testing, adding another layer of complexity.

America’s Health Insurance Plans, a trade payers lobby, said it is still “evaluating” OSHA regulations in response to questions about whether insurers will cover the costs of testing for the unvaccinated. Federal law requires insurers to cover Covid-19 testing without a cost-sharing requirement “where the purpose of the test is an individualized diagnosis or treatment,” rather than use in the workplace.

But several public health experts told POLITICO insurers are unlikely to want to cover weekly Covid-19 testing for unvaccinated employees due in part to guidelines from the three agencies issued by labor ministries, of the Treasury and of Health and Social Services. The rules, updated earlier this year, state that “issuers are not required to provide coverage for tests such as public health surveillance or employment purposes” under the Families First Coronavirus Response Act.

Leana Wen, an emergency physician and professor of public health at George Washington University, argued that insurers should not be required to cover testing for unvaccinated workers unless they show symptoms of Covid-19 or they have a known exposure to a person infected with the virus.

“It is totally unreasonable to require insurers to bear this cost, the cost of the tests should be borne entirely by the person who chooses to remain unvaccinated,” Wen said. “Individuals have a choice; they could get a free, safe and effective vaccine, or they could face financial penalties as a result. “

In the meantime, one also wonders if the plan will compress the country’s testing system.

The federal government has rushed in recent months to bolster the U.S. supply of rapid tests, including home tests. But the vaccines mandate does not allow home testing to be used to meet the weekly testing requirement for unvaccinated workers, unless employers or licensed telehealth supervisors observe workers taking the tests.

This requirement appears to be an attempt to ensure that unvaccinated workers submit the results of the Covid-19 tests they themselves have taken, said Harvard University epidemiologist Michael Mina. But it’s not clear whether OSHA regulations will be effective in preventing bad actors from mailing fraudulent samples for lab testing.

“No one is actually validating the nose that this swab went into,” Mina said. “The chain of custody for all of these tests is really broken all the time, so the verified part may not go far enough if our real focus is to say that we are trying to guarantee the authenticity of a test.”

Mayo Clinic Laboratories president William Morice, who is also chairman of the board of the American Clinical Laboratory Association, expressed concern about the potential for delays and backlogs in testing, especially if results are wrong. positive require further confirmatory testing.

“This is going to be a burden on the testing system, we are going to run into testing shortages,” said Georges Benjamin, executive director of the American Public Health Association. “It will be an administrative burden that will encourage more people to get vaccinated just because of the hassle.”

Others argue that the weekly tests may annoy unvaccinated people and provide a behavioral boost to research Covid-19 vaccines, but it will not help stop the spread of the coronavirus.

The testing requirement is intended to “make it more difficult for people who choose not to be vaccinated,” said Celine Gounder, infectious disease specialist and former Covid-19 advisor to the Biden transition.

“With Delta, you would really need to test every other day at a minimum if you are really trying to prevent transmission in the workplace,” she said.

Many home tests come with instructions asking asymptomatic people to take two tests over three days to ensure accurate results, for example. Still, the Biden Plan’s weekly testing requirement is in line with current guidelines from the Centers for Disease Control and Prevention.

In the meantime, professional associations in the laboratory and diagnostic industries say they are ready to respond to any new demand for testing motivated by the Biden mandate.

“We have the supply to be able to respond to this extra level of testing,” said Susan Van Meter, executive director of AdvaMedDx, a medical device trading group.

And the president of the American Clinical Laboratory Association, Julie Khani, said the major testing laboratories – which include Quest Diagnostics and LabCorp – “have sufficient testing capacity and are ready to meet the testing needs of the country.” .

It is not clear whether the vaccine or the testing warrant will actually be applied from Jan.4, given the current policy suspension issued by the U.S. 5th Circuit Court of Appeals. Many legal experts predict that the dispute could eventually reach the Supreme Court.

While the Justice Department has pledged to “vigorously defend” the rule in court, at least a dozen legal challenges have been filed in the 5th, 6th, 7th, 11th and DC circuits, triggering a lottery on the circuit that will ultimately hear the challenge.

According to a DOJ court file, the lottery to decide which court will hear the case is scheduled for November 16.

Historically, OSHA emergency standards have had about a 50/50 chance of survival in court. The agency has issued 10 temporary emergency standards in its five-decade history. Of these, five were totally or partially blocked.

“At the end of the day, this is a highly politicized fundamental rights argument” against rule-making, said David Miller of Bryant Miller Olive PA. He added that he expects the Supreme Court to be the place where “it must be settled”.


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