The Wisconsin Supreme Court, by a 4-3 vote, invalidated Wisconsin’s Safer-at-Home Order, also known as Order #28. It issued that decision on May 13, 2020. Here are five key takeaways to consider in the wake of that decision:
1.) As of this writing, Order #28 is no longer enforceable. People in Wisconsin are not required by that Order to stay at home. Non-essential businesses are not required to remain closed. There is one exception to the Supreme Court’s decision, however: The portion of Order #28 that requires closure of public and private K-12 schools remains in effect for the remainder of the 2019-2020 school year.
2.) The Supreme Court’s decision does not affect any other federal or state legislation concerning the COVID-19 pandemic, such as the so-called Families First legislation, the CARES Act, Wisconsin Act 185, or any similar legislation. Those laws remain in effect.
3.) Wisconsin businesses must continue to be aware of the Wisconsin Safe Place law. That law requires that an employer, or owner of a place that is open to the public must provide a safe place of employment for both employees and visitors and to undertake that which is reasonably necessary to life, health, safety and general welfare of employees and visitors. OSHA’s general duty clause also remains in effect. It holds that each employer shall furnish to each employee a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
4.) People and businesses may continue to use the concepts found within Order #28 to guide their conduct. However, such guidance is voluntary; it is not mandatory. Businesses should continue to review the CDC or the Wisconsin DHS website for suggested practices in addressing health concerns relating to COVID-19.
5.) It is possible that local health authorities may issue rules or orders that affect people or businesses following the invalidation of Order #28. In addition, Governor Tony Evers and the Wisconsin Legislature may collaborate on new rules or legislation to replace Order #28.
Stay apprised of new legal developments in the weeks and months ahead. Seek legal counsel as necessary. In the meantime, the attorneys at Anderson O’Brien will continue to monitor the legal developments with you.