Biden is Planning Unvaccinated Workers to Pay for COVID-19 Testing. Why His Plan Would Fail?
In a message to unvaccinated employees, President Biden has suggested they pay for office Covid-19 testing.
Firms can compel employees to pay for required weekly testing if they opt out of shots.
An individual may have to pay hundreds of dollars per month for this.
In some cases, however, the employer might still be responsible for paying most of the costs.
According to labor-law experts and business groups, corporations will likely have to pay for these vaccine costs if employees request religious or disability exemptions to the Covid-19 vaccine.
With businesses struggling to hire backup staff, the prospect of new testing costs may further harden opposition to Biden’s proposal.
Consequently, the latest push to end the pandemic would be hampered.
A Tricky Situation
Biden and the Democrats are also dealing with a politically dicey time, after suffering a surprise loss last week and struggling to pass infrastructure and social safety-net legislation.
Several Republican governors along with the Republican National Committee, Job Creators Network, and various firms have already filed suits challenging the employer vaccine mandate.
As a result of a lawsuit led by Texas’ Republican attorney general, the policy was temporarily halted by a federal appeals court on Friday.
The vaccine mandate “is a federal overstep that will only create more confusion and legal challenges,” Sen. Richard Burr told POLITICO.
“The move proves the administration continues to be out of touch with working Americans and risks exacerbating labor and testing shortages. Heavy-handed mandates will not solve this problem. Instead, the administration should foster cooperation with businesses and workers, with clear communication, transparency, and trust.”
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Biden supporters also are concerned about how the government has mandated vaccines and tests for unvaccinated, and while employees have to pay for them themselves under certain situations.
“Unfortunately, this new rule does not require employers to pay for face masks, or for the cost of testing for workers who choose not to get inoculated,” explained Jessica Martinez, co-executive director of the National Council for Occupational Safety and Health. “Pushing these costs onto workers is wrong-headed and an unprecedented departure from all previous OSHA standards.”
A Department of Labor spokesperson said that “payment for the costs associated with testing under other laws or regulations not associated with the OSH Act is beyond OSHA’s authority and jurisdiction,” after being asked about employers’ concerns.
Yet the spokesperson also noted that some companies may decide to cover the costs of screening, in part or whole, “as an inducement to keep employees in a tight labor market.”
Other companies may attempt to charge affected employees for the screening process, said the spokesperson.
Businesses with over 100 employees will be required to verify that their employees are immunized against Covid-19 or have weekly tests conducted.
More than 75 million workers are expected to be affected when the requirement takes effect.
There would be roughly 9 million holdouts, the majority of whom will work in person instead of remotely, according to the government.
Moreover, the Equal Employment Opportunity Commission says employers must be required to make vaccinations available at work, accommodating workers who cannot receive the vaccination due to their religious beliefs or disabilities.
The Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 both require accommodation, but employers may refuse to provide them only if it would present an “undue hardship” or if providing an accommodation would present a “significant difficulty or expense.”
Critical Costing
Nonetheless, lawyers are skeptical that the cost of the testing would qualify for that exemption, and they say it is difficult to meet that threshold.
Employers usually bear the cost of accommodations, explained said Ian Carleton Schaefer, chair of Loeb and Loeb’s employment and labor practice in New York, as an employee could claim they were being penalized because of their disability or religious belief by being demanded to pay for reasonable accommodations.
“I think employers will be hard-pressed to push the cost on to employees who fall properly within those exemptions,” Schaefer said about the Covid-19 testing.
Since determining whether a worker’s request for an accommodation is valid can take a long time, Ed Egee of the National Retail Federation believes that some of his members will still cover testing costs.
Under current overtime and minimum wage laws, employers are likely to cover the costs of testing employees during work hours.
Read More: COVID-19 Cases and Deaths Mostly Unvaccinated Texans
Insured Immunization
Another layer of complexity will increase if insurance companies begin covering Covid-19 testing at the workplace.
The payer trade group, America’s Health Insurance Plans, said it was “still evaluating” the OSHA regulation in response to questions about if insurers would cover the costs of testing for the unvaccinated. Federal law requires insurers to cover Covid-19 testing without cost-sharing requirements “when the purpose of the testing is for individualized diagnosis or treatment,” as opposed to workplace use.
As a result of a tri-agency directive from the Departments of Labor, Treasury, and Health and Human Services, employers are unlikely to have insurance companies pay for Covid-19 testing on an ongoing basis.
According to updated regulations issued earlier this year, “issuers are not required to provide coverage of testing such as for public health surveillance or employment purposes” according to Families First Coronavirus Response Act.
George Washington University’s Leana Wen, an emergency physician, and professor of public health argues that insurance plans should not be obligated to cover workers’ testing unless they are experiencing symptoms of Covid-19 infection or have been exposed to someone with the disease.
“It is completely unreasonable to require insurers to incur that cost, the cost of testing should be entirely borne by the individual who chooses to remain unvaccinated,” Wen said. “Individuals have a choice; they could get a free, safe and effective vaccine, or they need to incur the financial penalties accordingly.”
Susceptible Covid-19 Testing
Meanwhile, there are also concerns over how the plan will affect the country’s testing system.
Recent months have seen the federal government scramble to increase the supply of at-home tests and rapid tests in the U.S.
A new vaccination ruling bans workers from taking vaccination tests at home unless their employers or authorized telehealth proctors are present for the test.
We do not know whether OSHA’s regulation will prevent bad actors from sending in fraudulent samples to have lab tests conducted.
“Nobody is validating whose nose that swab went into,” Mina said. “The chain of custody for all these tests is being broken all the time, so the verified piece maybe doesn’t go far enough if our real goal is to say we’re trying to ensure the authenticity of a test.”
Read More: Unvaccinated People to be Banned from Costa Rica?
President William Morice expressed concern about the possibility of testing delays and backlogs at Mayo Clinic Laboratories, where he is also the director-president of the American Clinical Laboratory Association.
“It’s going to be a burden on the testing system, we’re going to run into test shortages,” said Georges Benjamin, executive director of the American Public Health Association. “It’s going to be an administrative burden that will foster more people getting vaccinated just because of the hassle.”
While weekly testing may inconvenience unvaccinated people and may stimulate them to get vaccinated against Coronavirus 19, it will not prevent its spread.
A mandatory testing requirement aims to “making it more difficult for people who choose not to get vaccinated,” said Céline Gounder, an infectious disease specialist and a former Covid-19 adviser to the Biden transition.
“With Delta, you would need to be testing every other day at a minimum if you’re trying to prevent transmission in the workplace,” she said.
Asymptomatic people may be told to take two at-home tests over three days to ensure accurate results, for example.
In any case, the weekly testing requirement of the Biden plan is consistent with the current CDC guidelines.
Laboratory and diagnostics industry trade associations say they are prepared to meet any additional testing demands resulting from the Biden mandate.
“We have the supply to be able to meet this additional level of testing,” AdvaMedDx executive director Susan Van Meter said.
President of the American Clinical Laboratory Association Julie Khani also stressed the importance of big testing labs to “have ample testing capacity and stand ready to meet the nation’s testing needs.”
In light of the 5th Circuit’s stay on the policy, it’s unclear whether a vaccine or test mandate will start in January.
Most legal analysts predict the case may end up at the Supreme Court.
Despite the Justice Department’s pledge to “vigorously defend” the rule in court, at least a dozen legal challenges have been filed in the 5th, 6th, 7th, 11th, and D.C. Circuits, triggering a lottery over which circuit will ultimately hear the challenge.
A DOJ court filing records that a lottery will decide whether the case will be heard by which court on Nov. 16.
It has historically been about 50/50 that OSHA emergency standards will survive in the courts.
Ten emergency temporary standards have been issued by the agency over the past five decades. Out of these, five have been blocked or partially blocked.
“In the end, this is a heavily politicized fundamental rights kind of argument” against the rulemaking, according to Bryant Miller Olive P.A. Miller noted that the Supreme Court is in the best position to resolve the case because “it’s got to be settled.”
