This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!

On March 25, 2020 Wisconsin’s Safer At Home Order (the Order) went into effect. The order is Wisconsin’s version of  a shelter-in-place or stay at home order that other states such as Illinois, California, Michigan, and New York, among others, have enacted in response to the COVID-19 pandemic. The order mandates that Wisconsinites only leave their homes for essential activities, and when they do leave their homes, they should practice social distancing as recommended by the Department of Health and Safety and the Centers for Disease Control. This Order is in effect until 8:00 a.m. Friday April 24, 2020. Notwithstanding the sunset date of this first order, it is possible (and altogether likely) that the State may issue a superseding order extending its duration.

The upshot of this order is that businesses that are not “Essential Businesses and Operations” as defined by the order must cease in person business and convert to telework (work from home) or cease business altogether. By way of this post we hope to inform businesses of their resources to determine whether they are “essential” or what is still available for those deemed non-essential.

Am I an Essential Business or Operation?

While at first glance the Order initial appears to shutter thousands of businesses across the state, a careful reading of the Order shows that many, many businesses may actually qualify as essential and continued operating. Although many businesses may be able to remain open, they will be subject to the modified business practices to slow the spread of COVID-19. Section 13 of the Order provides a list of Essential Businesses and Operations. The Essential Businesses and Operations list includes the other operations already allowed under the Order (Essential Governmental Functions, Healthcare and Public Health Operations, Human Services Operations and Essential Infrastructure) as well as 26 other broad types of businesses and operations.

Notable categories include (1) “Stores that sell groceries and medicine”; (2) “Food and Beverage production, transport, and agriculture,” which keeps the supply chain for (1) in tact; (3) “Restaurants”; (4) “Bars; (5) “Media”; (6) “Financial institutions and services”; (7) “Hardware and supplies stores”; (8) “Critical trades.”; and (9) “Professional services.” These nine categories alone allow businesses such as grocery stores, pharmacies, gas stations, construction companies, law firms, accounting firms, hardware stores, banks, and newspapers and radio stations to remain open beyond only minimal business operations.

Each category has its own restrictions and additional guidelines. For instance, bars and restaurants may only remain open for take-out or delivery services, grocery stores must (like bars and restaurants) close any seating areas for food consumption, and professional services should encourage telework to the extent practicable.

Governor Evers posted an FAQ on the Order, which encourages all business owners or employees to carefully read the Order in its entirety and make a decision based on the Order to determine whether the business is essential. In the event that a business believes it is essential but is not listed on the Order, the Wisconsin Economic Development Corporation (WEDC) provides an inquiry. The WEDC website also includes dropdown definitions of each listed essential business (use the “list” hyperlink above).

 What if I am not essential?

The Order requires any non-essential business (again, carefully check the Order for this determination) to cease in person operations. Despite the mandated cessation, businesses may remain open to perform “Minimum Basic Operations.” Minimum Basic Operations include processing payroll, security, and checking and maintaining inventory. These operations also include those necessary to facilitate work from home capabilities for employees.

What if I want to remain open?

Section 17 of the Order provides enforcement of the Order. It provides that law enforcement agencies, including county sheriff departments, may enforce the Order according to Wisconsin Statute Section 252.25. This statute allows those agencies to enforce the order by fining violators up to $350, imprisoning them up to 30 days, or taking both actions.

What if my county, city, or town has its own order?

To maintain consistency across the state, the Order includes Section 19 “Supremacy.” This section states that the Order supersedes any order inconsistent with it. So, if your locality created its own order that is less restrictive than the State’s, the State’s will apply regardless of a local order.

The business attorneys at Schober, Schober & Mitchell, S.C. are here to guide your business through these strange and confusing times. Stay informed by keeping up with our COVID-19 Response Posts that will be posted on our Business Blog page. If you would like to talk to us regarding the Safer At Home Order or any other business considerations, implications, or issues surrounding the COVID-19 pandemic, please reach out at 262-785-1820 or by visiting our website at www.schoberlaw.com.