A key question as SCOTUS weighs vaccine rule for businesses: What if unvaccinated workers can’t find COVID-19 tests?

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The US Supreme Court will consider Friday whether to block a federal rule that would require businesses to ensure their employees are vaccinated against COVID-19 or tested every week if they are unvaccinated. live.

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The matter comes to court during the Omicron variant surge, when the wait for COVID-19 tests can sometimes drag on for hours, traffic jam And Blocking the sidewalks. Test result increasing turnaround time, just like the price of quick-selling over-the-counter tests sold by some major retailers.

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And that’s what’s happening before this The demand for increased testing may come after a court weighed in on regulations from the Labor Department’s Occupational Safety and Health Administration. The vaccine-or-testing rule would affect an estimated 84 million private-sector workers in businesses with at least 100 people on the payroll.

Opponents of the rules – including business groups and Republican-leaning states – want to block enforcement, arguing that OSHA is overstating its authority. The Biden administration says OSHA is doing well within its power in matters of life or death significance.

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Without court intervention, OSHA has said it will begin issuing citations for incompatible businesses as soon as next week. Penalties related to test requirements could apply after February 9.

OSHA have said before “Adequate COVID-19 tests are available and there is sufficient laboratory capacity to meet the anticipated increased testing demand.” But the agency says it will consider it easier when employers are making a “good faith” effort to comply with the rules when there are not enough test supplies.

So what are businesses and illiterate workers going to do if recurring tests become the law of the land when getting a test becomes such a test?

This is a seriously open question, some experts say.

Test availability, waiting periods for results and what to do with wait workers are all unresolved issues, according to attorney Michael Schmidt, vice president of the Department of Labor and Employment at Cozen O’Connor, a national law firm that represents business management.

When it comes to the companies he represents, “a lot of people are worried about and struggling with it at the moment,” Schmidt said.

“Right now, we know we are essentially at full capacity,” said Mara Espinol, a professor at Arizona State University’s College of Health Solutions who has been closely watching the country’s COVID-19 testing capabilities.

According to Espinol’s estimate, this month the country will be able to conduct 631 million tests. This is up from 593 million estimated in December and projected to rise to 732 million in February and 907 million in March.

The Biden administration says it will distribute 500 million home test kits starting this month, but Aspinall said it is unclear what the speed of distribution will be.

Now Omicron draws on the prospect of widespread routine worker testing during the wave and flu season, when people can resort to COVID-19 tests to see which virus they have.

“Without any significant new investments or new companies in the process,” Aspinall said, adding that it is difficult to see “where that new demand will fit into existing capacity.”

What if tests are scarce?

The issue’s rules give businesses two options: They can opt to require vaccination for all workers, or they can offer a testing option for unvaccinated workers who are physically at the workplace.

This is a weekly test for employees who are frequent workplace people. For people with sporadic trips, they must test negative within seven days of the workplace visit, explained Mary Kulbeth, general counsel and vice president of privacy at SixFifty, a legal technology company subsidiary of law firm Wilson Sonsini Goodrich. And Rosati.

Kulbeth said that if someone is waiting for their results within the seven-day window, they may be physically at work. If it’s beyond that time frame, “they can’t be at the workplace,” she said.

Lab results from PCR tests and antigen tests are approved by OSHA. Results from over-the-counter tests are also acceptable – but test administration has to be supervised by an employer or a “Authorized Telehealth Provider.”

Now what if test availability is tight?

If there is a lack of adequate testing supplies, OSHA said it will look at what businesses are doing to comply with the rules, “as well as the pattern and practice of the employer’s testing program.” The agency said it would “consider abstaining from enforcement where the facts show good faith in an effort to comply.”

The OSHA rule describes what regulators will expect of businesses, not what is expected of workers.

But if companies need to do their best to comply with the rules, those same companies are hoping workers will do their best to test safe, Schmidt said. This may mean looking for tests in multiple places and also documenting the finding.

“It’s not just a CVS going down the road” and leaving the effort at that, he noted.

Another avenue is a business contract with a testing provider — but that can be an expensive option, Kulbeth said. “That’s where companies are making choices based on cost.”

Professional groups say cost is one reason the Supreme Court needs to put the brakes on the rules. Testing non-vaccinated workers would cost $4 billion, plus $3 billion in other compliance costs, he estimated in court papers.

Federal rules aren’t making employers to take the tab on testing, so it could fall on the uninsured worker. Laws in some states state that employers are still required to pay for medical tests. But even where employers can pass on the costs, trade groups say it’s unlikely they can in a “historically tight labor market.”

What will the workers do while waiting for the result? And will they get paid?

OSHA rules Allow up to four hours of paid leave for each vaccine dose, plus paid sick leave after each dose to recover from any side effects.

But the rules are silent on the company’s pay policies while someone is out of the workplace and waiting for test results, Schmidt said. He said state and local laws or bargaining agreements can provide guidance.

This is another way OSHA rules nudge, prod and tempt workers to get their shots. “They do not want testing and masking. They want people to be vaccinated,” Schmidt said.

Assuming the rules are in effect, Kulbeth said for unvaccinated workers “this could be the stage at which they say, ‘Do I want to go ahead and get the vaccine because compliance has gotten really tough? “

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