By Erin Ogden
The Wisconsin Supreme Court struck down the statewide Safer at Home orders as invalid and unenforceable, which means some counties and municipalities have implemented their own orders, while some did not.
My colleagues and I are not going to discuss the court’s opinion. There are lots of attorneys who want to do that more than we do. Dissecting the opinion won’t help us or our clients figure out what to do next. Instead, let’s focus on what we know and how to move forward.
For starters: Just because you can open your doors, that doesn’t mean that you are required to do so. Many businesses are choosing to remain curbside and delivery only. If you are not comfortable having people come into your place of business, you are not required to do so. But what if you do want to let people in?
First, check your municipalities’ rules. Counties, towns and cities are implementing their own stay at home orders. Here is a list that is being updated. For example, Dane County is “Safer at Home” through at least May 26. It will be interesting to see what the county does after that.
Second, check with your employees and your customers. Opening without anyone coming in may be more harmful to your budget than not opening. There are stories of businesses opening in Georgia to no one visiting. Granted, one I saw was an axe-throwing business. You can see why that wasn’t the first place people visited after leaving their homes during a pandemic. In any case, you want to gauge if you will be paying employees to babysit an empty store.
Also, communicating with your customers to keep them updated about what you are doing and why will be an important step in the process. I thought this Facebook post by a bar and bowling alley in southwestern Wisconsin did a nice job. I know what they are doing, what to expect if I go, and why I may want to get that curbside pick-up. The important thing is to not say you are doing something (like sanitizing everything) if you are not.
Also, employees may not be comfortable coming back. Have a plan about how and why they are being asked to come in and what you are doing to protect them. The federal government has discussed limiting employer’s liability, but it hasn’t happened yet. Understand and address their concerns if you want to earn your “Best Boss” mug.
Third, do not plan to open like nothing has happened. There may still be liability if your employees or customers get sick and can trace it back to your business. This, of course, is more likely to happen with employees, as tracing the source of infection back to a workplace where there is customer contact is easier than following a customer around. The WEDC has guidelines that many, including the Republican legislators who sued to end the Safer at Home orders, are pointing to as what should occur. The CDC also has a lot of information and guidelines.
From a legal standpoint, I’d rather a client be able to show they were following those guidelines above and it didn’t work 100% than that they made up their own rules that didn’t work.
As things continue to develop, so will our advice. It seems like every day information shifts or a new study comes out. I’m still trying to figure out if eggs are good for me or not so I understand how overwhelming this can be. As for the eggs question, I’ve decided that if you add enough bacon, it doesn’t matter.
Tech Council member Ogden is managing attorney with the Madison-based firm of Ogden, Glazer + Schaefer and can also be reached in LinkedIn.
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