On November 9, 2021, Husch Blackwell’s Labor and Employment practice group shared with the attendees of the 2021 Wisconsin Labor & Employment Virtual Series breaking news regarding Wisconsin state law and COVID-19 testing. The Department of Workforce Development (DWD), tasked with enforcing Chapter 103.37 of Wisconsin Statutes, 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.
Wisconsin statute 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.
The Emergency Temporary Standard (ETS) published by OSHA on November 5, 2021 imposes a soft mandate on employers requiring 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. The Interim Final Rule from the Centers for Medicare & Medicaid Services (CMS) imposes a hard mandate on many healthcare employers that participate in Medicare and/or Medicaid,...
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