By: Misha Lee | IIAW Lobbyist

This article was featured in our November 2020 Wisconsin Independent Agent. To read the full issue, click here. 

A lawsuit filed this month seeks to prevent Governor Tony Evers and his administration from publishing a list of Wisconsin businesses that have had 2 or more confirmed cases of COVID-19 among their employees since June. The administration cited legal compliance with open record requests from the media as their basis for releasing the information. This summer, it’s relevant to point out that Governor Evers had originally stated that it was his position that the information was not public and keeping it private actually helps public officials better manage outbreaks of COVID-19.

Wisconsin Manufacturers and Commerce (WMC), along with several other local area chambers of commerce, immediately brought a lawsuit seeking an injunction by the court when it was learned that Governor Evers’ Department of Health Services (DHS) had reversed course and was preparing to release a list of businesses. Subsequently, a Waukesha County circuit court judge issued a temporary restraining order stopping the release of the information. The judge’s order will remain in place through the month of November while litigants in the case prepare and make their arguments to the court.

Read the lawsuit filed here. The legal challenge, in part, argues:

• The records that defendants (Evers, DHS, DOA) plan to

   disclose are protected by patient-confidentiality laws.

• Even if the information that the defendants plan to release

   were not explicitly protected by health-privacy laws, the

   open-records statute would not authorize disclosure of

   the information.

• Disclosure would cause plaintiffs’ members and businesses

   across the state irreparable harm.

The DHS list, if allowed to be published, would include: 1) Businesses with 25 or more employees; 2) include the business name and the number of known or suspected COVID-19 cases among employees of the business; 3) information from “closed investigations” will be provided. These are defined as businesses that had 2 or more confirmed cases within 28 days of each other, but have not had any subsequent cases within 28 days; and 4) the administration’s plan would also release business information even if those businesses had no employees test positive, but had two or more contact tracing investigations.

IIAW strongly objects to the publication of this list and has joined the chorus of business groups in urging the administration to reconsider its position. The action taken by the administration does nothing to protect the health of the general public. Further, it undermines the amount of time, effort and expense that Wisconsin’s essential businesses have invested in protecting their employees and their customers during this extremely challenging  pandemic. The reputational and financial damage this action could cause thousands of businesses if allowed, particularly those struggling due to the negative impacts from the pandemic, could be crippling. Identifying the names of employers that had employees or customers who tested positive for COVID-19 gives the false impression that the employees or customers got the virus at their place of work or at a particular business location – when that is almost impossible to determine. Even further, the release of business names and information could also expose businesses to greater liability for frivolous lawsuits. IIAW, along with more than 70 state trade organizations, have called on the Wisconsin legislature to pass liability protection legislation for employers during the pandemic. The legislation would create a safe harbor for all property owners and occupants who are good actors against frivolous lawsuits alleging a plaintiff was infected with COVID-19 at a specific premises. The legislature has not acted, but may convene following the November 3rd election.

Since filing of the lawsuit and the court’s injunction, the Department of Health Services (DHS) has not be able to provide any additional information regarding the list of businesses due to the pending litigation on the matter.