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On May 13, 2020, the Wisconsin Supreme Court issued its decision in Wisconsin Legislature v. Secretary-Designee Andrea Palm, et al. and declared the state’s Safer at Home Order unlawful, invalid, and unenforceable, creating a rush by local jurisdictions to issue orders to prevent the spread of COVID-19, resulting in uncertainty for businesses as to how to operate.

The Decision

The Wisconsin Legislature, led by a coalition of Republican lawmakers, argued that Governor Tony Evers, by designating Andrea Palm, the secretary-designee of the Wisconsin Department of Health Services (WDHS), could not continue to extend stay-at-home orders indefinitely without seeking approval from the state legislature through rulemaking procedures under Wisconsin Statute § 227.24.

The court agreed and determined in a 4–3 decision that Emergency Order #28 was a “rule” under Wis. Stat. § 227.01(13) and Wisconsin court precedent, because the order was a “general order of general application,” as it was “(1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the effect of law; (4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency as to govern the interpretation or procedure of such agency.” Accordingly, the provisions of Wis. Stat. § 227.24 governed the issuance of Emergency Order #28 issued by Secretary Palm and required her to engage in “statutory required emergency rulemaking procedures” that mandated input from the legislature before the order was promulgated. Because Secretary Palm acted without taking these steps, Emergency Order #28 was unenforceable. Further, because Emergency Order #28 imposed criminal penalties if violated—specifically up to 30 days imprisonment for those who violated or otherwise obstructed the order—Wis. Stat. § 225.25 placed additional requirements on Secretary Palm to follow rulemaking procedures under Wis. Stat. § 227.24.

Finally, the court held that Secretary Palm exceeded even the authority granted to her under Wis. Stat. § 252.02(4), which permits the WDHS to take specific actions to address the spread of a communicable disease. For example, the statute permits WDHS action in respect to “the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease.” However, the court explained that by restricting social gatherings of any number of people not part of a single household and ordering all individuals within the state to stay at home, the order went beyond controlling the actions of those infected or suspected of being infected. Even the broadest provisions of Wis. Stat. § 252.02(4)—which permit WDHS action “for control and suppression of communicable diseases”—did not permit Secretary Palm to prohibit all travel or require the closure of nonessential businesses because nothing in the statute specifically permitted these additional broad restrictions.

The Separate Writings

Every justice, except Justice Annette Ziegler, wrote separately.

Chief Justice Patience Roggensack, who authored the court’s opinion, wrote to explain further her rationale for denying the legislature’s request for a six-day stay prior to invalidating the order. She explained that although a legal basis existed to stay the court’s decision, she “trust[ed] that the parties [would] place the interests of the people of Wisconsin first and work together in good faith to quickly establish a rule that best addresses COVID-19 and its devastating effects on Wisconsin.”

Justices Rebecca Bradley and Daniel Kelly each wrote in concurrence to the court’s opinion to highlight that they would have gone a step farther and have held that Secretary Palm was constitutionally barred from issuing Emergency Order #28, as she was not an elected official.

Justices Ann Walsh Bradley, Rebecca Dallet, and Brian Hagedorn each wrote in dissent to express their outrage with the court’s decision.

What the Ruling Means for Wisconsin Employers

Neither the governor nor the legislature has yet offered replacement guidance on COVID-19 suppression measures. Notably, the court allowed Emergency Order #28 to remain valid as to school closings for the 2019-2020 school year, which means that while businesses may open, schools remain closed. However, in the interim, counties such as Dane, Door, , and Rock, and the cities of Milwaukee and Racine have promulgated their own stay-at-home orders, while other immediately issued such orders, then rescinded them.

Moreover, the Wisconsin Economic Development Corporation (WEDC) recently released reopening guidance that aims to allow the safe and measured reopening of businesses deemed nonessential by the now-invalid Emergency Order #28. Emergency Order #28 required businesses to consider the WEDC reopening guidelines prior to reopening after May 26, 2020. Regardless of the invalidity of Emergency Order #28, the WEDC guidelines (and those from the Centers for Disease Control and Prevention, Occupational Safety and Health Administration, U.S. Department of Labor, Equal Employment Opportunity Commission, and others) continue to have practical advice that businesses may consider for the health and safety of employees, customers, and the continuity of business operations.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.

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