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Wisconsin Department of Health Services Releases Emergency Order 28

Business Law Alert Ryan L. Van Den Elzen, Judith A. Williams-Killackey, Patrick H. Taylor

Yesterday, the Secretary of Wisconsin’s Department of Health Services released an updated Safer-at-Home Order. This Order becomes effective at 8:00 a.m. on April 24 and will remain in effect until 8:00 a.m. on May 26. The order contains two key updates concerning the continued operation of Essential Businesses in Wisconsin.

The updated order includes new safe practices that all Essential Businesses and Operations must implement. As of April 24, Essential Businesses and Operations shall:

  1. To the greatest extent feasible, comply with Social Distancing Requirements as defined in this Order between all individuals on the premises, including but not limited to employees, customers, and members of the public.
  2. Restrict the number of workers present on premises to no more than is strictly necessary to perform the essential operation.
  3. Increase standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the work place.
  4. Adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.

The updated order also includes updated guidance for Essential Businesses and Operations remaining open for in-person sales, such as retail stores. This guidance includes limiting the number of people inside stores, creating dedicated shopping time for vulnerable populations, and establishing lines to regulate entry.

In addition to new safe practices, the updated order clarifies how businesses supplying or manufacturing goods for Essential Businesses or Operations or Essential Government Functions (as defined in subsections 13(r) and (v)) should treat their non-essential business lines:

Any business or operation that is considered an Essential Business or Operation under this section may only perform those business operations which are necessary for the Essential Business and Operations or Essential Government Functions to which they are supplying goods or services. Any non-essential goods or services may only continue as Minimum Basic Operations.

It does not appear that the State intends for this language to be a material change to the prior definition of Essential Businesses. The new language aligns with WEDC’s previous oral guidance for businesses. However, having this new provision in the Order may signal that the State intends to be more aggressive in its policing and enforcement of the Order. Further, based on reaction to the extension, and indications that some businesses may intentionally violate the extended Order, it is possible that enforcement will be more aggressive. Businesses supplying or manufacturing goods may want to revisit their operational decisions to confirm only those operations which are necessary are being performed.

We believe that most manufacturing businesses will not find that this new guidance results in a practical difference for how they view their essential vs. non-essential operations; however the new Order could have meaningful implications for retail or distribution businesses. In practice, many manufacturing businesses’ essential and non-essential operations are so integrated that the non-essential operations cannot be shut down without shutting down operations that are clearly essential, and in such circumstances businesses should continue to be permitted to engage in all related operations.

View the entire order here.

As with the prior order, being able to clearly articulate to your employees, customers, and suppliers why your business is essential is critical. If you have any questions about the essential status of your business, please call your Quarles & Brady attorney, or contact:

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