Think Twice Before Requiring Your Employees to Pay for Their Own Covid Tests

Although OSHA’s COVID ETS does not specifically require employers to pay for the cost of weekly COVID tests, it does recognize that state or local laws may require an employer to do so. In all likelihood, Louisiana law does just that.

Specifically, LSA-R.S. 23:897 provides that:

Except as provided in Subsection K of this Section and in R.S. 23:634(B), it is unlawful for any public or private employer to require any employee or applicant for employment to pay or to in any manner pass on to the applicant or to withhold from an employee’s pay the cost of fingerprinting, a medical examination, or a drug test, or the cost of furnishing any records available to the employer or required by the employer as a condition of employment.

Although the statute fails to define exactly what constitutes a “medical examination”, it is entirely possible that a COVID test will qualify as a “medical examination” under state law, meaning that employers cannot safely require their employees to pay for the cost of the COVID test.

Considering the vague nature of 23:897, and the fact that thousands of employees will be getting weekly COVID tests if the U.S. Supreme Court allows OSHA’s COVID ETS to go into effect, you can count on this issue being the subject of many lawsuits. The safest path would be for employers to pay for their employees COVID tests.

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