By Andrew Richards, Co‑Managing Partner, Kaufman Dolowich & Voluck LLP
Matthew Cohen, Counsel, Kaufman Dolowich & Voluck LLP
Matthew Cohen
Counsel, Kaufman
Dolowich & Voluck LLP
Andrew Richards
Co‑Managing Partner
Kaufman Dolowich & Voluck LLP
In guidance that predates the pandemic, the EEOC opined that an employer can require a “medical examination” which is defined as “a procedure or test that seeks information about an individual’s physical or mental health impairments or health,” if such examination “is shown to be job-related and consistent with business necessity.” As such, a COVID-19 test can be analogized to a medical examination.
New York Labor Law Section 201-b(2) provides that “It shall be unlawful for any employer to require an employee, as a condition of employment, to pay the cost of any medical examination . . . where: (a) such examination is not covered by health insurance or the employee’s health insurance does not cover such examination or the employer does not provide qualified medical personnel to conduct such examination without cost to the employee; and (b) such examination . . . is not required pursuant to a state or federal statute or municipal ordinance or local law.”
Accordingly, if a subcontractor requires the testing on its own, then the subcontractor would have to pay for the cost (if any) of conducting a COVID-19 test. If the prime contractor requires the testing, we believe that payment by the prime contractor for testing would be governed by the terms of the subcontract (i.e., change orders). If the subcontractor is performing public work and is required by the owner to have their employees conduct weekly COVID-19 testing, it would appear like the New York Labor Law would not require payment by the employer for any cost of the COVID-19 test.
Please note, however, that guidance regarding COVID-19 is rapidly changing, and this provision of the New York Labor Law was not drafted with COVID-19 testing in mind. As such, it wouldn’t surprise us if further guidance comes out very soon, especially with President Biden’s announcement that employers with 100 or more employees will be required to mandate vaccination or weekly testing.
In addition, the time spent by an employee to conduct a COVID-19 test may be compensable. According to the U.S. Department of Labor, an “employer is required to pay [an employee] for time spent waiting for and receiving medical attention at their direction or on their premises during normal work hours.
