OSHA do’s and don’ts for mandatory COVID-19 testing of unvaccinated employees

Unless the U.S. Supreme Court intervenes to further delay the federal COVID-19 vaccine-or-test mandate for private companies with at least 100 employees, covered employers should prepare to have their testing programs in place and ready to go by no later than February 9, 2022.

Employer guidance

If employers implement the Occupational Safety and Health Administration’s (OSHA) vax-or-test policy, they must establish a weekly COVID-19 testing program for unvaccinated workers. Even if the employers go with a vaccine mandate, they would still have to implement the testing requirements for employees who aren’t fully vaccinated because of an exemption or accommodation. Failure to comply could subject employers to potentially significant fines.

To assist covered employers in complying with its emergency temporary standard (ETS), OSHA has published a series of FAQs on its website containing specific instructions on how to start and maintain a legally compliant testing program. You can find the guidance specific to testing employees who aren’t fully vaccinated in Section 6.

Self-administered + self-read test = noncompliant

Ensuring the COVID-19 test results’ integrity is paramount to compliance, which is why OSHA included a requirement for some type of independent confirmation. Notably, for a coronavirus test to be valid under the ETS, it may not be both self-administered and self-read unless the entire process is observed by either the employer or an authorized telehealth proctor.