Provided by: Jennifer Kirschenbaum, Esq.
August 31, 2020
I am requiring unvaccinated staff be Covid tested weekly. What are my obligations to pay for the testing?
Thanks in advance.
Good question. I've asked Kieran Bastible, part of our employment law team to answer....
To date, I am unaware of the Department of Labor addressing directly as related to Covid. However, you should first check with your health care insurer to see whether such tests are covered, and/or strongly encourage employees to use cost-free testing sites.
If Covid testing not by the employer plan, prior ADA guidance suggests that employers will be obligated to pay the costs of administering mandated COVID-19 tests. “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA” states when an employer requires that an employee, who it reasonably believes will pose a “direct threat,” be examined by a health care professional (usually of the employer’s choice), the employer must pay all costs associated with the employee’s visit to the health care professional. Based on 2020 guidance of the Center for Disease Control (CDC) and public health authorities, the pandemic meets the “direct threat” standard. Therefore, employers will likely be required to pay for administering employer-mandated COVID-19 tests. New York also has an expense reimbursement statute, which also likely covers the reimbursement of necessary business-incurred expenses, such as the cost of the tests as well as mileage to and from the testing site. For the time being, without definitive guidance from the State, the safest bet is for employees to avail themselves of a free testing option. If that is not available and you do not offer to reimburse, there is a chance at a later date the Department of Labor takes a vocal position and you may owed back pay, and or other potential costs.