For almost the last two years the world has been dealing with the pandemic. COVID-19 caused a work stoppage that we are still not past. Employers want to keep their employees and customers safe from harm and therefore, in many cases, they have requested employees to get the COVID-19 vaccine. If employees cannot receive the vaccine due to health reasons, employers may then put in place COVID restrictions such as requiring the use of face masks, keeping people at a distance from each other, and more. In addition, employers may request employees to undergo COVID testing on a regular basis.
Can an Employer Require COVID Vaccinations?
There is an ongoing debate about whether employers can require employees to get COVID vaccines. Currently, the law allows private employers to make vaccines part of their requirements for employment. Wisconsin is considered an “employment at-will” state. This means employers have the right to terminate employees at any time and for any reason. At the same time, employees can leave employment at any time. An employer may require employees to get vaccinated for COVID-19 and to prove that they have received the vaccination. There are some limited medical exemptions for COVID vaccinations.
Can Employers Require COVID Testing?
Employers can require employees who are not vaccinated to submit to regular COVID testing. The Wisconsin Department of Workforce Development (DWD) oversees the enforcement of Wisconsin Statute 103.37. The statute prohibits employers from requiring employees to pay for the costs of medical examinations that are a requirement for employment. The DWD recently clarified that this statute does not pertain to COVID-19 testing when an employee chooses testing as an alternative to COVID vaccination. However, the clarification by the DWD is considered guidance and is not actual legal advice. Employees may challenge the law in court.
The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) that imposes a soft mandate requiring employees to get vaccinated when requested or, if exempted by a medical condition, to submit to regular testing per the requirements of the employer. The Centers for Medicare and Medicaid Services (CMS) has a hard mandate in place for healthcare employers who participate in their programs. These soft and hard mandates do not address the payment of costs associated with regular COVID testing.
In general, the current interpretation of Wisconsin law does not require employers to pay for regular COVID testing in situations where testing is an alternative to vaccination. In other words, if an employee does not get the COVID vaccine due to an exemption, and testing is an alternative, employees must pay for testing themselves.
The rules and guidelines regarding COVID vaccinations and testing are changing on a regular basis. If you are involved in a dispute with an employee or employer over COVID restrictions and requirements it may require legal resolution. Contact our experienced lawyers today at Moen Sheehan Meyer Ltd. at (608) 784-8310 or online to discuss your case.