In a 4-3 decision with multiple concurrences and dissents, the Wisconsin Supreme Court struck down Emergency Order No. 28 issued by the Secretary-designee of Wisconsin Department of Health Services. In reaching its conclusion, the majority of the Court determined that the extended safer at home order constituted a rule and was illegally promulgated because it had not gone through the rule-making process. The ultimate holding of the Court’s opinion is that the extended safer at home order is null, void, and unenforceable immediately. This means that there currently is no statewide order directing individuals to remain at home, ordering certain businesses to close, or setting protocols or standards for those businesses that were allowed to continue operating.
Businesses, however, need to proceed with caution as several local jurisdictions have had public health orders in place and several more have issued public health orders since the Court’s Opinion was released. Additionally, OSHA, the CDC, and other state and federal agencies have issued numerous guidance documents that businesses should consider when determining how to restart their operations. All businesses should carefully review any local orders applicable to their operations to determine what activities are permitted and what requirements those orders may impose.
At the time of this writing, the City of Milwaukee, suburban Milwaukee County, Dane County, LaCrosse County, and Rock County, have orders in place.
Please contact the author or your normal Michael Best lawyer for guidance and counsel on how you can comply with any such orders and to determine how to safely resume your operations.