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  • December 01, 2021

    Wisconsin Law Does Not Require Employers to Pay for COVID-19 Testing

    A recent Occupational Safety and Health Administration notice requires that employers mandate that their employees either obtain a COVID-19 vaccination or undergo periodic COVID tests. Tom O’Day and Bethesda Zewdie review whether employers will be required to pay for COVID testing for employees who are not vaccinated.

    Tom G. O'Day, Bethesda Zewdie

    On Nov. 9, 2021, the Wisconsin Department of Workforce Development (DWD), tasked with enforcing Wis. Stat. section 103.37, clarified that the statute does not require employers to pay the cost of COVID-19 testing where the testing is offered as an alternative to vaccination and where the federal government has issued a soft mandate that requires either testing or vaccination of employees.

    Section 103.37(2m) provides that:

    No employer may require any employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.

    It is important to note, however, that the DWD guidance is not formal and is not binding on any court of law. A court could disagree with DWD and determine that the statute does require payment.

    OSHA and CMS Recent Notices

    The Emergency Temporary Standard (ETS) on Vaccination and Testing, published by Occupational Safety and Health Administration (OSHA) on Nov. 5, 2021, imposes a soft mandate on employers that requires employees either to obtain a COVID-19 vaccination (except for employees receiving a religious or medical exemption) or submit to weekly COVID-19 tests until the employee is fully vaccinated.

    Bethesda Zewdie Bethesda Zewdie, U.W. 2018, is an attorney in Husch Blackwell’s Health Care, Life Sciences, and Education strategic business unit in Madison, where she assists employers with labor and employment matters.

    Tom ODay Tom O’Day, U.W. 2005, is a partner in Husch Blackwell’s Health Care, Life Sciences, and Education strategic business unit in Madison, where he advises and represents employers on labor and employment matters.

    The Interim Final Rule, CMS-3041-IFC, posted Sept. 10, 2021, from the Centers for Medicare & Medicaid Services (CMS), imposes a hard mandate on many health care employers that participate in Medicare and/or Medicaid requiring vaccination or an appropriate religious or medical exemption. The CMS rule does not require testing, but it is implied for those who obtain an exemption and remain unvaccinated.

    Neither the ETS nor CMS rule requires employers to pay for any costs associated with testing.

    Other Law or Regulations and Costs of Testing

    Importantly, however, employer payment for testing may be required by other laws or regulations, including state laws. Initially, it was unclear whether section 103.37(2m) imposed a duty on employers to pay for COVID-19 periodic testing, and the one attorney general opinion (from April 1980) ​that touched on the statute did not address the issue.

    In response to an inquiry by Husch Blackwell, DWD clarified that it interprets

    103.37 as not requiring employers to cover the cost of COVID testing where the testing is an alternative to vaccinations and where the vaccination/testing requirement is mandated by the federal government.

    DWD was careful to note that its interpretation was not binding on any court of law.

    The statement from the DWD is good news for Wisconsin employers, even though there is some risk that a court may decide differently.

    What This Means for Employers

    The interpretation of the statute by the DWD provides employers with a greater degree of certainty regarding their obligations and costs associated with the implementation of OSHA’s ETS and the CMS rules.

    While no Wisconsin court has opined on this issue, the DWD statement supports an employer’s legal position that employers are not obligated to pay for periodic COVID-19 testing.

    This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

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    Labor & Employment Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Andrea Farrell and review Author Submission Guidelines. Learn more about the Labor & Employment Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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