Follow-up: The COVID Crystal Ball—Predicting the Future for Employers Five Questions Answered

On February 2, 2022, Steptoe & Johnson PLLC attorneys Bill Wahoff, Jeff Tour, and Ashley Faulkner held an interactive webcast and provided employers an opportunity to ask questions related to paying for testing, creating COVID-19 prevention and control policies, and federal guidance and regulations, including those withdrawn by OSHA following the recent U.S. Supreme Court decisions.

To follow up on the webcast, please see below five questions and answers raised during the webcast.

Q. Do employers with fewer than 100 employees need to establish COVID-19 policies and procedures?

A. Yes, all employers need to comply with the General Duty Clause enforced by OSHA. Although there is no standard now following the U.S. Supreme Court’s decision suspending the Vaccination or Mandatory Testing and Face Covering Emergency Temporary Standard, OSHA is expecting employers to have a written COVID-19 prevention and control plan. Healthcare employers certified by the Center for Medicare and Medicaid Services (CMS) must require vaccinations of all personnel in addition to complying with the General Duty Clause. The list of health care employer entities that must comply is in the CMS Interim Final Rule for CMS certified facilities participating in the Medicare and Medicaid programs.

Q. Does OSHA provide any recommended language or guidance for employers creating COVID-19 prevention and control plans?

A. Yes, employers can refer to the OSHA website for model plans, https://www.osha.gov/coronavirus/safework, and OSHA 4045-06, Guidance on Returning to Work which OSHA published in May of 2020. The publication provides recommendations to assist employers in providing a safe and healthful workplace. For example, the publication discusses guiding principles for social distancing, hygiene, hazard assessment, training, and return to work protocols, among other things.

Q. Can an employer require an employee to provide proof of a negative COVID-19 test, by utilizing health plan provided tests?

A. No, health plans do not have to pay for at-home COVID-19 tests for work purposes. Beginning January 15, 2022, fully-insured and self-insured group health plans are required to reimburse participants for the cost of purchasing OTC COVID-19 tests—pursuant to Section 6001 of the Families First Coronavirus Response Act. However, the FFCRA provides that the COVID-19 tests are for personal use. A health plan can take reasonable steps to ensure the provided tests are purchased for the insured’s own personal use and not as a requirement for work.

Q. What states prohibit employers from asking for proof of employee vaccination status?

A. As of February 2, 2022, twenty states prohibit proof of vaccination requirements in certain situations. States with such prohibitions include Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming. Employers should consult their state’s relevant legislation or executive order to determine the state-specific restrictions and circumstances.

Q. Can an employer require an employee to pay for COVID-19 testing if the employee chooses not to get vaccinated?

A. Assuming the employer is not an entity covered by the CMS rule, which requires vaccination of all staff. Pursuant to an employer’s COVID-19 policy, an employer could require unvaccinated employees to pay for testing. However, while such a rule is not prohibited by federal law, payment of testing may be required by state law. For instance, West Virginia requires medical examinations, such as COVID-19 testing, be paid for by the employer.

For those who were unable to make the webcast, click here for a recording of “The COVID Crystal Ball—Predicting the Future for Employers.” For further questions or information, please contact the presenters.