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 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.
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.
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.
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.
originally posted in the State Bar of Wisconsin Labor and Employment Law Section blog and has been reposted with the authors’ permission
