Brian Dake

As companies start planning their reopenings, business groups are pushing Congress to limit liability from potential lawsuits filed by workers and customers infected by the coronavirus.

They appear to have the White House’s ear.

President Donald Trump has floated shielding businesses from lawsuits. His top economic adviser Larry Kudlow said on CNBC last week that businesses shouldn’t be held liable to trial lawyers “putting on false lawsuits that will probably be thrown out of court.” He said the issue could require legislation, and Senate Majority Leader Mitch McConnell said Monday that the issue would be a priority when lawmakers return.

At issue is how to balance protecting businesses from lawsuits that could distract them and even lead to financial ruin, while also enabling justice for customers and workers who in a time of rapidly rising unemployment may not have the option of leaving their jobs for something safer.

“If there is no liability on the part of employers without a set of rules by which employers have to abide by, then that means you can have a wild wild west,” said Kent Swig, president of Swig Equities, LLC, a privately owned real estate investment and development company.

“You have to have a balance,” he added, “and you have to have rules and regulations.”

Swig says he’s planning measures like one-way lanes in public corridors in the lobbies and plexiglass dividers in offices at his properties. But he’s seeking national guidelines as well.

Linda Kelly, general counsel at the National Association of Manufacturers, said her trade group is “not trying to protect bad actors, and we are also not saying that liability should be completely eliminated.”

Rather, she said, the group believes “there should be a higher standard in place in order to impose legal liability and that employers who are doing the best that they can with the knowledge they have should not be subject to legal liability.”

Yesterday, Governor Tony Evers today announced the another turn of the dial in expanding allowed operations for nonessential businesses, providing even more opportunities for businesses to get back to work in a safe and responsible way.

The Emergency Order, signed on Monday by Wisconsin Department of Health Services Secretary-designee Andrea Palm, allows nonessential businesses to do curbside drop-off of goods and animals.

This will allow businesses like dog groomers, small engine repair shops, upholstery businesses, and others to safely open. This order also allows outdoor recreational rentals, such as boats, golf carts, kayaks, ATVs, and other similar recreational vehicles. Additionally, automatic or self-service car washes would be able to operate.

All of these businesses must operate free of contact with customers by providing payment options online or over the phone, enact proper disinfecting practices, and operations must be able to be performed by one staff member.

On Thursday, Thompson called on leaders of both parties and Gov. Evers to come together amid the Covid-19 crisis.

“It’s time to come together – it’s time to get together – it’s time to come up with a plan. A plan to get Wisconsin moving. And it’s not a Republican plan, it’s not a Democrat plan, it’s a Wisconsin plan. And that’s what we have to do right now. We’re in an emergency, we’re in a pandemic,” Thompson said.

While he was on board with Gov. Tony Evers’ first ‘Safer at Home’ order, the former governor, who is a Republican, said he hasn’t seen enough of a plan in place for re-opening businesses in Democratic Gov. Evers’ second extension of ‘Safer at Home.’

Thompson said the governor and lawmakers need to work together to bring in tourism, hospitality and tavern industry, and Wisconsin manufacturers and commerce to share ideas about how to open up businesses, saying a “staggered way, that’s going to provide for healthy conditions, and safety for customers.”

He thinks they can find ways to safely re-open some bars, restaurants and attractions, again in a staggered fashion.

On April 21, the Senate passed the Paycheck Protection Program and Health Care Enhancement Act. The bill—a $484 billion package dubbed “Phase 3.5″—will replenish the Small Business Administration’s (SBA) loan and grant programs; provide support to hospitals and medical facilities; and expand federal, state, and local coronavirus testing efforts. The House is scheduled to vote on the legislation today after which President Trump is expected to sign it into law.

Specifically, in an effort to provide some relief to the nation’s small businesses, the deal reached by Congressional leaders and President Trump includes:

• An additional $310 billion for the SBA’s Paycheck Protection Program, with $60 billion specifically allocated for loans made by small lenders and community-based institutions;
• An extra $50 billion for the SBA’s Economic Injury Disaster Loan (EIDL) program;
• An extra $10 billion for the SBA’s Emergency Economic Injury Grant program;
• A clarification that agricultural enterprises with 500 or fewer employees are eligible to receive EIDLs and emergency grants; and
• An additional $2.1 billion for the SBA’s administrative expenses.

The Wisconsin Legislature filed a lawsuit directly with the Wisconsin Supreme Court on Tuesday challenging DHS Secretary-Designee Andrea Palm’s authority to keep Wisconsin’s economy closed and its residents locked down indefinitely – when even Gov. Tony Evers does not have that power.

The lawsuit accuses the Department of Health Services (DHS) Secretary-Designee of violating state law by extending the governor’s emergency rules, exceeded her authority by closing businesses and locking down individuals, acting “arbitrarily and capriciously” in her order, and usurping the legislature’s oversight powers. The lawsuit seeks a temporary injunction.

“The governor has denied the people a voice through this unprecedented administrative overreach. Unfortunately, that leaves the legislature no choice but to ask the Supreme Court to rein in this obvious abuse of power,” Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald wrote in a joint statement. “Wisconsinites deserve certainty, transparency, and a plan to end the constant stream of executive orders that are eroding both the economy and their liberty even as the state is clearly seeing a decline in COVID infections.”

Evers’ issued a shelter-in-place order that went into effect on March 25, he calls “Safer at Home.” It shutdown businesses and organizations he deemed “non-essential,” and banned all gatherings of any number outside of a single family unit. That order was originally scheduled to end on April 24, but Evers has the ability to extend it up to May 10. That’s the day his emergency powers expire and he needs legislative approval to continue his original state of emergency.

Yesterday, Governor Tony Evers announced Wisconsin’s “Badger Bounce Back” plan which outlines important criteria for Wisconsin to be able to reopen its economy in phases and includes steps to make sure workers and businesses are prepared to reopen as soon as it is safe to do so.

The Badger Bounce Back plan is informed in part by the President’s Guidelines for Opening Up America Again that was issued by the White House on April 16, 2020. Currently, Wisconsin does not meet the criteria the White House established to start reopening our state. The Badger Bounce Back plan takes important steps to get the state of Wisconsin there.

The goal of the Badger Bounce Back plan is to decrease cases and deaths to a low level, and increase capacity in our healthcare system so the phased reopening of businesses is possible.

The Badger Bounce Back plan is available here. The Wisconsin Economic Development Corporation’s portion of the Badger Bounce Back plan aimed at helping to ensure workers and businesses are prepared and ready to bounce back is available here.

The Senate is scheduled for a pro forma session Monday, but no vote has been set.

The House announced it could meet as soon as Wednesday for a vote on the pending package, according to a schedule update from Majority Leader Steny Hoyer, D-Md.

With small-business owners reeling during a coronavirusoutbreak that has shuttered much economic activity, Treasury Secretary Steven Mnuchin said he was hopeful of a deal that could pass Congress quickly and get the Small Business Administration program back up by midweek.

“I’m hopeful that we can get that done,” Mnuchin said Sunday.

Senate Minority Leader Chuck Schumer, D-N.Y., also said he believed a deal could be reached. “We still have a few more details to deal with,” he said.

The emerging accord links the administration’s effort to replenish a small-business with Democrats’ demands for more money for hospitals and virus testing. It would provide $300 billion for small-business payroll program, and $50 billion would be available for small business disaster fund. Additionally, it would bring $75 billion for hospitals and $25 billion for testing, according to those involved in the talks.

On a conference call Sunday afternoon that included Trump, Mnuchin and Republican senators, Senate Majority Leader Mitch McConnell, R-Ky., indicated the only remaining item for discussion involved the money for testing, according to a Senate GOP leadership aide who spoke on condition of anonymity to discuss a private call.

Yesterday, Governor Tony Evers directed Wisconsin Department of Health Services (DHS) Secretary-designee Andrea Palm to extend the Safer at Home order from April 24, 2020 to 8 a.m. Tuesday, May 26, 2020, or until a superseding order is issued.

The order implements some new measures to ensure safety and support the progress we’ve made in containing COVID-19, but also allows certain activities to start up again. The order is available here.

The extension of the Safer at Home order includes a few changes. Some changes allow more businesses and activities to open back up, while other changes help make businesses safer for employees and customers.

If you have questions, a Frequently Asked Questions (FAQ) document is available here for your review.

Governor Evers signed the bill Wednesday just one hour after it passed the Senate 32-0 and a day after it passed the Assembly on a 97-2 vote.

It lifts a one-week waiting period for unemployment insurance in Wisconsin and requires health insurers to cover COVID-19 testing. It also bars insurers from discriminating against people who have or have had the virus.

The new law will also clear the way for Wisconsin to qualify for additional federal Medicaid funding made possible by the $2 trillion U.S. CARES Act that passed Congress last month.

“My pen has been waiting for weeks to sign legislation that guarantees Wisconsin will capture our fair share of federal dollars under the CARES Act and ensures workers experiencing unemployment and underemployment won’t be forced to wait an extra week for needed benefits to kick in,” Evers said in a statement Wednesday. “This bill is finally a step in the right direction, but there is much more work to be done.”

Senators debated the bill briefly Wednesday morning during a virtual session of the Senate. Most lawmakers participated over webcams, either from home or from their Capitol offices.

“This bill isn’t perfect and it might be the first bill of a number that we are going to have to pass in the Legislature, but it is timely, and I think it’s been well thought out and I think it will help,” said Sen. Majority Leader Scott Fitzgerald, R-Juneau. “Wisconsinites have endured great sacrifice and the measures that we have taken and that the governor has taken so far are working.