Conservative law firm advises against legal challenges to COVID-19 testing requirement for state employees

NOW: Conservative law firm advises against legal challenges to COVID-19 testing requirement for state employees

MADISON, Wis. (CBS 58) --- A conservative law firm known to challenge Gov. Tony Evers' executive orders related to the pandemic says they won't file a lawsuit against a new COVID-19 testing requirement for state workers, and are advising others to do the same.

It comes after a top Republican suggested he may take legal action against the requirement, calling it a "flagrant invasion of medical privacy."

The Wisconsin's Institute for Law and Liberty (WILL), who's filed lawsuits against the Evers administration throughout the pandemic, said the latest move to require unvaccinated state workers to undergo weekly testing for COVID-19 is different than previous executive actions.

"It's a little bit difficult (to challenge) when the governor is acting as an employer and the command is not applicable to people on a statewide basis," said Rick Esenberg, president and general counsel of WILL.

The policy issued by Wisconsin's Department of Administration does have exemptions for employees who work from home or have shown proof of their vaccination status.

With the testing requirement having some exemptions, Esenberg believes it would be a "heavy lift" to challenge in court.

"A lawsuit will be very difficult, because courts will be deferential to a governor's ability to act with respect to state employees who work for him," said Esenberg. "I think a case against Governor Evers in this instance is going to be a heavy lift."

The testing requirement will go into effect Oct. 18, but how it will be implemented remains unknown.

The move comes after the Evers administration decided to survey state workers about their vaccination status. About 87% of the workforce responded, and of those, about 70% reported being fully vaccinated.

The order received backlash from Senate Majority Leader Devin LeMahieu who signaled possible legal action.

"Evers’ actions are constitutionally suspect and a flagrant invasion of medical privacy," LeMahieu said in a statement. "The State Senate will explore all options within our authority to protect the rights of Wisconsinites and prevent further abuses by overreaching executives – be them from Governor Evers or President Biden.”

While Esenberg advised against filing a lawsuit against Evers, he believes President Joe Biden's vaccine requirements on workers will face numerous lawsuits because of how broad the mandate is anticipated to be.

Meanwhile, Democrats continue to praise the new testing requirement implemented by Evers, and Biden's efforts to boost vaccinations.

"The governor has been consistent by trying to do everything he can with his administration to make sure people are kept safe across the state of Wisconsin from this deadly pandemic," said Sen. Chris Larson (D-Milwaukee).

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