This post was drafted primarily by our talented law clerk, and recent Marquette University Law School Graduate, Kieran O’Day, who will soon begin a clerkship with the Wisconsin Supreme Court. Congrats to Kieran on his graduation!
On May 13, 2020, the Wisconsin Supreme Court declared the extended Safer at Home Order unlawful, which meant businesses originally deemed “nonessential” could reopen. After the order was issued, a handful of counties and other municipalities implemented their own orders that largely reflect the former statewide order. For the most part, as of May 26, 2020 (the date the Safer at Home Order was scheduled to end), non-essential businesses are legally allowed to be open. Despite the Safer at Home Order no longer being in place and it now being legally permissible for non-essential businesses to reopen across the entire State of Wisconsin, the novel COVID-19 virus hasn’t gone away. Business owners looking to re-open now need to be aware of the potential liability they face if an employee or customer contracts the disease as a result of the operation of their business and how to minimize that risk. This post will briefly discuss some potential avenues of liability that Wisconsin business owners may face if employees or customers contract COVID-19 and are able to trace it to their business and what steps should be taken to minimize that liability.
Worker’s compensation insurance is required for most Wisconsin businesses. It is used to cover the medical costs for an employee injured on the job. The Wisconsin Department of Workforce Development (DWD) has provided a guidance page discussing the relationship between worker’s compensation and COVID-19. According to the page, if an employee can prove that the employee contracted COVID-19 “while performing services growing out of and incidental to . . . employment,” the employee would be covered under the State’s worker’s compensation statute and may be able to make a claim against the employer. As such, though it is likely impossible for employers to completely prevent the contraction of COVID-19 by its employees in the workplace, employers can and should take steps to minimize the likelihood of this, primarily by adhering to state, local, and federal governmental health officials who provide guidance to businesses on how to minimize the spread of the disease. The CDC and state agencies in Wisconsin have issued recommendations on this.
These precautions may include, but are not necessarily limited to, putting into place policies regarding required masks for employees, requiring social distancing of employees, allowing employees to work from home if possible, practicing proper sanitation practices, requiring that any employees feeling ill stay home from work, and/or required temperature checks to come into the workplace. Though of course not a guarantee that employees will not contract this virus while working, taking these steps may result in a much greater chance of minimizing the spread of the virus, and therefore minimize liability from worker’s compensation claims.
It is also possible that a business could be held liable for negligence if a customer or employee were to contract COVID-19 which is caused by the business, whether the person contracts it on the business premises or not. In Wisconsin, “a person is negligent if the person, without intending to cause harm either acts affirmatively or fails to act in a way that a reasonable person would recognize as causing an unreasonable risk of injury.” To hold a business liable for contracting COVID-19, the infected person would have to be able to prove that the business breached a reasonable standard of care and that that breach was the cause of the person’s infection. Though there are of course proof problems inherent with an infected person proving that they contracted the disease from a particular business, a business’ failure to take reasonable steps to prevent a reasonably foreseeable harm to employees or customers poses substantial risk of exposure to liability for the business. Given the availability of recommendations from federal, state, and local health experts to avoid and minimize the spread of COVID-19, businesses failing to adhere to these recommendations may be ripe for being sued by customers or employees who contract the disease as a result of the business not taking such steps. Time will tell on whether these claims will succeed, but businesses looking to avoid being embroiled in litigation are advised to err on the side of caution and put into place a plan based upon health experts recommendations.
Wisconsin Safe Place Statute
Finally, Wisconsin has a unique statute that places an additional burden on employers and owners of properties open to the public. This is the Wisconsin Safe Place Statute, or Wisconsin Statute section 101.11. The statute states that “[e]very employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof . . . .” It also imposes a duty upon employers to “adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do everything reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.” Frequenters are “[persons] other than employees and trespassers at the place of employment.” This means that customers of a business actually on the premises of the business and who may be injured by contracting COVID-19 may have a claim under the Wisconsin Safe Place Statute.
The safe place statute places a higher burden upon employers and building owners as compared to negligence. The Safe Place Statute is intended to cover liability for unsafe workplace or business conditions, not negligent acts or omissions. Id. Safe place statute violation claims have three elements for an injured party to succeed: “(1) there was an unsafe condition; (2) the unsafe condition caused the plaintiff’s injury; and (3) the defendant had either actual or constructive notice of the unsafe condition before the injury occurred.” The relative risk of any given hazard is a factual case-by-case analysis. More specifically, “[w]hat constitutes safe depends on the facts and conditions present and the use to which the place was likely to be put.”
It remains to be seen how COVID-19 may fit into this scheme (i.e. how COVID-19 might be deemed to be an unsafe condition on a premises, or how a business owner may have had actual or constructive notice of the unsafe condition of COVID-19). There will likely be litigation on this in the future that will clarify this. However, at this point, given the rapid spread of the virus, especially in places of business that we’ve seen throughout the country and world, business owners looking to avoid becoming embroiled in litigation or being potentially liable to employees or customers under the Wisconsin Safe Place Statute would be prudent to adhere to federal, state, and local health officials’ recommendations for minimizing the spread of the disease. Taking those steps will, in the very least, show an effort to “do everything that is reasonably necessary to protect the life, health, safety, and welfare of employees and frequenters”, as is required under the statute.
It is incredibly important for businesses to begin reopening to get the economy in the right direction and persons employed in the midst of this unprecedented pandemic. Many of our business clients, friends, and family members have been substantially impacted by this shutdown and the virus–whether it be financial health, physical health, and mental health. However, it is equally important for business owners to understand and adhere to guidance from the CDC and state agencies to not only prevent further spread of the disease, but also to minimize the risk of liability in operating their business. Guidance is changing and updating as the health community gets more information on the spread of the virus, and the situation continues to be fluid. Keeping apprised of the changes and adapting to them is also incredibly important.
We are hopeful that if we all, collectively, work together by listening to health experts’ recommendations on best practices for fighting COVID-19, that business can get back to normal soon. Failing to do so, in addition to the legal implications identified in this post, may result in a second wave of the virus and even further catastrophic effects on the business community, the economy, and the health of our citizens.
We at Schober Schober & Mitchell, S.C., are keeping apprised of ongoing developments related to the COVID-19’s impact on Wisconsin. We are available to assist with your legal needs and questions related to COVID-19 as well as all other business matters that you and your business may have. Please contact us at 262-785-1820 or email me, Attorney Jeremy M. Klang at firstname.lastname@example.org. Stay healthy and safe!
 Megal v. Green Bay Visitor & Convention Bureau, Inc., 2004 WI 98, ¶ 25.
 Wis. Stat. § 101.11(1).
 Gennrich v. Zurich American Ins. Co., 2010 WI App 117, ¶ 16.
 Szalacinski v. Campbell¸ 2008 WI App 150, ¶ 25
 Hofflander v. St. Catherine’s Hosp., Inc., 2003 WI 77, ¶ 89.
 Megal, 2004 WI 98, ¶ 10.