On May 8, 2020, the Wisconsin Economic Development Corporation (WEDC) published a series of general and industry-specific guidelines to assist businesses with reopening under Governor Tony Evers’s “Badger Bounce Back” plan. Guidelines are available for many industries, including agriculture, construction, entertainment/amusement, gym and fitness centers, hair and nail salons, hospitality/lodging, manufacturing, professional services, public facilities, restaurants, retail, transportation, outdoor gatherings, outdoor recreation, and warehouse/wholesale trades.
Across multiple guidelines, the WEDC—a public-private agency—identified common modifications to practices, policies, and physical accommodations to safely reopen. For example, each guideline encourages businesses to increase cleaning and sanitizing practices, and have employees practice social distancing and use face masks or cloth face coverings. The guidelines repeatedly direct businesses to adhere to the guidelines and recommendations published by the Centers for Disease Control and Prevention.
The guidelines also present unique recommendations tailored to specific industries. For example, the WEDC encourages agriculture, construction, and manufacturing employers that have employees who otherwise clock-in and clock-out at a central location to stagger shifts and break times, or rely on personal electronic device applications, to reduce employee congregation. Additionally, the WEDC suggests businesses that require individuals to work or otherwise utilize indoor facilities to review their HVAC systems to increase outdoor air circulation. The WEDC provided this guidance for gyms and fitness centers, hair and nail salons, and manufacturing, professional services, and retail businesses.
At the time the WEDC released their reopening guidelines, Wisconsin remained under the Safer at Home Order. The Safer at Home Order, which remains in effect until May 26, 2020, requires all non-essential businesses and operations to cease, with limited exceptions. Once Wisconsin meets metrics and data criteria established by the Wisconsin Department of Health Services (WDHS), phase one of the Badger Bounce Back plan will allow non-essential businesses to begin to reopen. While the WEDC guidelines are immediately useful to essential businesses currently in operation, non-essential businesses may turn to these publications as they prepare to enter phase one of the Badger Bounce Back plan
Although the WEDC guidelines are not legally binding on employers, the governor and the WDHS are urging businesses to review them. On May 11, 2020, WDHS Secretary Andrea Palm issued Emergency Order #36, “Interim Order to Turn the Dial,” which requires businesses to review and consider integrating and adopting applicable guidelines. However, the order stopped short of compelling businesses to incorporate the guidelines’ recommendations.
Employers can continue to monitor developments with Wisconsin’s executive orders issued by Governor Evers and emergency orders issued by the WDHS for any incorporation of the guidelines into new orders.
Due to the industry-specific nature of the guidelines, businesses may find the new publications contain strategies to help safely reopen that they did not previously consider. In the event of any conflict with the WEDC guidelines, and absent any new developments related to state orders, then federal, state, or local law will apply. However, employers may find that employees will refer to the guidelines as a basis to raise concerns with how their businesses operate through the COVID-19 pandemic, including with respect to employee safety. Such references may constitute protected activity under laws like the National Labor Relations Act or the Occupational Safety and Health Act, for which retaliation is prohibited.
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.