WISCONSIN ISSUES “SAFER AT HOME” ORDER

Yesterday, Wisconsin’s Department of Health Services issued its 16-page Emergency Order #12 (the “Order”), known as the “Safer at Home” Order, in response to the novel coronavirus (COVID-19) pandemic. The Order is in effect from 8:00 a.m. Wednesday, March 25, 2020 until 8:00 a.m. Friday, April 24, 2020, unless a superseding order is issued.

INTRODUCTION
The Order attempts to balance the need to contain the spread of COVID-19, by requiring individuals to stay at home for most purposes, with the need for individuals to perform basic functions, such as buying groceries and medicines and obtaining necessary medical attention.
Generally, the “stay at home” requirement applies to all Wisconsinites. The Order carves out specific business and personal activities that are considered essential which will be allowed to continue. The Order, however, as detailed as it is, cannot cover every personal or business circumstance. A commonsense approach should apply to interpreting those issues which the Order does not expressly address.
Within this context, the Order contains the following overarching themes:

  • Social distancing and personal safety instructions still apply.  Maintain social distancing of six feet between people; wash hands with soap and water for at least 20 seconds as frequently as possible or use hand sanitizer; cover coughs or sneezes (into sleeve or elbow, not hands); regularly clean high-touch surfaces; do not shake hands; and follow all other public health recommendations issued by DHS and the U.S. Centers for Disease Control.
  • To the fullest extent possible, all businesses (including Essential Businesses) should use technology to avoid meeting in person. This includes virtual meetings, teleconference, and remote work (i.e., work from home).
  • The elderly and those with underlying health conditions should stay in their home or residence to the extent possible except as necessary to seek medical care.

The following is a breakdown of the Order’s requirements. If you have any questions regarding the specific applicability of the Order to your business or activities, contact the attorneys at Fox, O’Neill & Shannon.

CLOSURES AND PROHIBITIONS
Except for Essential Businesses and Operations (discussed below), the Order generally requires that “(a)ll for-profit and non-profit businesses with a facility in Wisconsin . . . must cease all operations at facilities located in Wisconsin.” Operations may be performed at home by employees or contractors, and certain actions may be taken to protect the business.  Door-to-door solicitations are prohibited under all circumstances.
Required closures include:

  • Public and private K-12 schools and public libraries, except for facilitating distance learning.
  • Indoor or outdoor places of “public amusement and activity.” These include commonly understood entertainment venues, gyms, and fitness centers.
  • Salons and spas.  These include hair salons and barber shops, tattoo parlors, tanning facilities, nail salons and related businesses.

STAY AT HOME REQUIREMENT
The Order generally requires all persons in Wisconsin to “stay at home or in their place of residence.”
The Order prohibits public and private gatherings of any number of people that are not part of a single household or living unit. To the extent individuals who are not living in the same household are using shared or outdoor spaces, they must, at all times as reasonably possible, maintain social distancing of at least six feet from any other person.

  • Residential landlords or rental property managers are prohibited from entering leased premises except for emergency maintenance.
  • Individuals whose homes or residences are or become unsafe, such as due to domestic violence, are allowed and encouraged to leave their home and stay at a safe alternative location. Homeless individuals, while exempt, are encouraged to obtain shelter.

INDIVIDUALS MAY LEAVE HOME FOR “ESSENTIAL ACTIVITIES”
Activities or tasks essential to their health and safety, or to the health and safety of their family or household members, including pets. These include obtaining medicine or medical supplies, seeking emergency services, or visiting a medical or behavioral health care professional.
Activities or tasks to obtain necessary services or supplies for themselves and their family or household members, or to deliver those services or supplies to others.  These include obtaining food, fuel, pet supplies and other household consumer products or products necessary to maintain the safety, sanitation, and essential operations of residences.

  • Engaging in outdoor activities, so long as individuals comply with social distancing requirements. Running, hiking, biking, and walking are examples of allowed activities. Team or contact sports are not allowed.
  • Actions to care for a family member, friend, or pet in another household, and to transport family member, friends or pets as allowed in the Order.
  • Actions to perform work or activities allowed under the Order.

“ESSENTIAL BUSINESSES AND OPERATIONS ALLOWED”
The following are considered Essential Businesses and Operations which are encouraged to continue operating (subject to certain conditions) with the social distancing guidelines:

  • Businesses identified by the Department of Homeland Security as Essential Critical Infrastructure Workers.
  • Stores that sell groceries and medicine. Food consumption on premises and self-serve stations/buffets are not allowed.
  • Food and beverage production, transportation and agriculture.
  • Restaurants, but only for take-out and delivery and bars/breweries for carry out only where permitted by state law or local ordinance.
  • Child care settings, with priority given to families with employees in critical industries.
  • Charitable organizations and social services.
  • Weddings, funeral and religious groups and gatherings, and funeral establishments. Any gathering shall be of less than 10 people at a time, with social distancing required as much as possible.
  • Media.
  • Gas stations and businesses needed for transportation such as auto, motorcycle, boat and bicycle supply, repair and sale.
  • Financial institutions and services.
  • Hardware and supply stores.
  • Critical Trades, including building and construction, plumbers, and electricians (among many others).
  • Mail, post, shipping, logistics, delivery and pick-up services.
  • Laundry Services.
  • Businesses that sell supplies to work from home.
  • Businesses that sell, manufacture, or supply Essential Businesses and Operations and Essential Government Functions with the support or supplies necessary to operate.
  • Transportation services necessary for Essential Activities and other purposes expressly allowed under the Order.  Examples are airlines, taxis, Uber, Lyft-type services and vehicle rental services.
  • Home-based care and services for seniors, adults, children, and people with disabilities, substance abuse disorders and/or mental illnesses. Examples are caregivers or nannies and other in-home services including meal delivery.
  • Professional services, including legal, accounting, insurance, and real estate (including appraisal, home inspection, and title services) services.
  • Manufacturers, distributors, and supply chain companies for critical products and industries.
  • Industries include pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitations, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel products, fuel, mining, construction, communications, national defense, and products used by Essential Governmental Functions and Essential Businesses and Operations.
  • Critical labor union functions.
  • Hotels and motels.
  • Higher educational institutions, to facilitate distance learning, critical research, or essential functions determined by the institution.

Businesses that believe they should be included as an Essential Business or Operation may also qualify through the Wisconsin Economic Development Corporation.

MINIMUM BASIC OPERATIONS FOR NON-ESSENTIAL BUSINESSES AND OPERATIONS
Even if a business does not qualify as an Essential Business or Operation, certain Minimum Basic Operations are still allowed, so long as employees follow social distancing requirements to the extent possible. Minimum Basic Operations include:

  • The minimum necessary activities to maintain the value of the business’ inventory, preserve its physical plant and equipment’s condition, ensure security, process payroll and employee benefits, or for related functions (including when those functions are outsourced);
  • The minimum necessary activities to facilitate employees being able to work remotely from their residences.

OTHER ALLOWED ACTIVITIES INCLUDE:

  • Essential government functions. All services required by state, tribal or local governments to ensure the continuing operation of the government body and provide and support the health, safety, and welfare of the public.
  • Essential Travel.  Travel related to providing or access to Essential Activities, Special Situations, Essential Governmental Functions, Essential Businesses and Operations, or Minimum Basic Operations.
    • Travel to care for elderly, minors, dependents, persons with disabilities, or other vulnerable persons.
    • Travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, or any other related services.
    • Travel to return to a place of residence from outside Wisconsin.
    • Travel required by law enforcement or court order, including to transport children pursuant to a custody agreement.
    • Travel required for non-residents to return to their place of residence outside Wisconsin.
  • Special situations, such as:
    • To obtain healthcare (including veterinary care).
    • To work for or obtain care at any state, institutional or community-based setting providing “human” services to the public. This includes assisted living and long-term facilities, residential settings and shelters, home-based settings, adult day-care or day services, and offices providing food, shelter, social services or other necessities for economically disadvantaged, developmentally disabled or otherwise needy individuals.
    • To provide services or perform work necessary to offer, provide, operate, maintain and repair Essential Infrastructure, as defined in the Order.

ENFORCEMENT
The Order is enforceable by any law enforcement official, including county sheriffs. Violations or “obstructions” of the Order are punishable by up to 30 days’ imprisonment, a fine of up to $250, or both.

CONCLUSION
We are all adjusting to the “new normal” caused by the COVID-19 pandemic. Please contact your FOS attorney with any questions you may have regarding Wisconsin’s new “Safer at Home” Order, COVID-19, or any other legal issue.
Be well.

FOX, O’NEILL, & SHANNON, S.C.