Many employers are starting to require their workers to get vaccinated against the novel coronavirus (Sars CoV2), more commonly known as Covid-19. As of now, the alternative appears to be subjecting employees to Covid-19 testing on an ongoing basis.

Weekly testing may seem like a suitable alternative if you are hesitant, against getting vaccinated, or in need of a reasonable accommodation; however, many questions still remain: Who will pay the bill for testing? Is the employer the one to take financial responsibility for testing costs?

Companies of all kinds are trying to promote a Covid-free-business and workspace for their employees and customers. On the other hand, should unvaccinated employees foot the bill for regular and recurring testing (that can become costly as it accumulates)?  

The Delta Variant Spread but so did Policy Change. 

Higher transmission rates of Covid-19’s Delta variant led many employers—including large corporations, federal government agencies, state and local governments—to revise their Covid-19 safety protocols and policies. More often than not, employees get left out of these critical discussions and the decision-making process for vaccine mandates, as they generally happen behind closed doors. 

In August 2021, President Joe Biden released several statements urging Americans to get vaccinated. As vaccination rates started to slow down, President Biden issued an executive order requiring all federal employees to get vaccinated and directed the Occupational Safety and Health Administration (OSHA) to create a rule requiring companies with more than 100 employees to mandate Covid-19 vaccinations for all employees eligible.

A few weeks ago, OSHA started an extensive vaccine mandate rollout; however, it is now suspending enforcement of the Biden administration’s COVID-19 “vaccine-or-test” mandate for private businesses after a United States Court of Appeals for the Fifth Circuit released a 22 page ruling and called the vaccine mandate “fatally flawed,” baring OSHA from executing it– for now.

While this stay on the rule prohibits OSHA from forcing private businesses to implement a vaccine requirement for their employees, business owners have always had the power to implement vaccination requirements and policies themselves. Many business owners are still implementing new vaccine policies on their own accord, requiring employees to get one of the available Covid-19 vaccines or regularly provide proof of negative Covid tests. 

Who is Ultimately picking up the Covid-19 Workplace Testing Costs? 

The final verdict is still out on whether employer or employee should pay for testing at work if an employee must have a Covid-19 vaccine but does not wish to get one. However, an employer is obligated to provide a reasonable accommodation for legally exempt employees.

Typically, employers carry the cost of providing a reasonable accommodation for employees (for example, a special chair for an employee with a back injury) and testing should be no different, but depending on the number of employees asking for testing at a particular place of business, the costs, and frequency of those tests, the employer could claim the accommodation would cause them an undue financial hardship.

What Laws are in Place to Support Religious Exemptions and Reasonable Accommodations? 

Under Title VII of the Civil Rights Act of 1964, an applicant or employee can request a reasonable accommodation if a COVID-19 vaccination requirement if the requirement conflicts with their sincerely-held religious beliefs, practices, or observances. Title VII prohibits discrimination against employees based on their race, color, religion, sex, or national origin.

Additionally, states across the country have laws to protect employees with sincere religious beliefs and those with a qualifying medical reason for not getting certain vaccinations. California’s Fair Employment and Housing Act (FEHA) covers religious beliefs, practices, and observances, while Title VII of the Civil Rights Act of 1964 does so at a federal level. The Americans with Disabilities Act (ADA) requires employers to comply with federal laws and to provide reasonable accommodations to employees with disabilities or substantial limitations. 

Employees can ask for reasonable accommodation in these situations (perhaps to work remotely or for the employer to provide or pay for testing). Accommodation measures, including continuing to work remotely, help to preserve the well-being of employees and avoid high turnover rates for employers.

If your workplace is implementing a vaccine policy and you believe you are legally exempt…

Due to a sincerely-held religious beliefs or qualified medical reasons, workers in California may be exempt from vaccination requirements.  If you believe you have been wrongly denied a reasonable accommodation to your employer’s vaccine policy, you may contact an experienced and knowledgeable attorney for guidance. The employment attorneys at SANFORD A. KASSEL, A Professional Law Corporation can help assess your case if you feel your rights as an employee have been violated.