On April 16, 2020, the Wisconsin Department of Health Services (DHS) Secretary-designee Andrea Palm issued Emergency Order #28 (Order #28), an extension of the Safer at Home Emergency Order #12 (Order #12) first issued on March 24, 2020. Order #28 takes effect Friday, April 24, 2020, and will remain in effect until Tuesday, May 26, 2020.

While generally portrayed as an extension of Order #12, Order #28 provides additional specifications, restrictions and requirements for essential and non-essential businesses. Businesses deemed essential under Order #12 or U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) guidance retain that status under Order #28. However, Order #28 creates additional explicit limitations on the activities essential businesses may engage in. As a result, essential and non-essential businesses may need to alter how they continue to operate under the new order.

REQUIREMENTS AND LIMITATIONS FOR ESSENTIAL BUSINESSES

Essential businesses must limit number of workers to what is essential

Order #28 states that businesses must “restrict the number of workers present on premises to no more than is strictly necessary to perform the essential operation.” The revised order has clarified that even essential businesses must limit worker presence to those essential to carry out essential operations. As a result, employers may have to revise staffing models to further limit worksite presence.

Businesses must follow additional safe business practices

Order #28 creates additional requirements for safe business practices, which must be followed by all businesses. Order #28 continues the requirements that all essential businesses must use technology to allow work from home arrangements and implement social distancing requirements to the greatest extent feasible.

Further, essential businesses are required to increase standards of facility cleaning and disinfection, adopt protocols to clean and disinfect in the event of a positive 2019 novel coronavirus (COVID-19) case in the workplace, and adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.

While many businesses already have adopted COVID-19-specific workplace safety policies, these policies and practices should be reviewed and amended to meet the new DHS standards. The following resources are available and should be consulted when developing or updating your safety policies and procedures:

• Wisconsin Economic Development Corporation’s (WEDC’s) COVID-19 Response Plan

• The Center for Disease Control and Prevention (CDC) COVID-19 guidance

• The Occupational Safety and Health Administration’s (OSHA’s) COVID-19 webpage

Vendors of essential businesses face new restrictions

Suppliers, manufacturers, distributors and supply chains for essential businesses and operations may only supply goods or services that are necessary for the essential business, operations or government functions of their customers. Order #28 creates an explicit requirement that businesses that are essential because they manufacture, supply, distribute, are part of the supply chain or provide services for other essential businesses may only perform operations necessary to support those essential operations. Any non-essential goods or services may only continue as minimum basic operations.

Order #12 did not specify this limitation, and some businesses may have taken the position that other non-essential work could have continued so long as the company was providing some amount of essential goods or services. The new order makes clear essential businesses may only perform those business operations which are necessary for the essential business and operations or essential governmental functions to which they are supplying goods or services.

Suppliers, manufacturers, distributors and companies in the supply chain need to limit their business operations to providing goods or services to other essential operations. To continue operations to the maximum extent possible, businesses need to fully understand how the goods or services they provide are necessary to support essential activity.

NEW DETAILS ON MINIMUM BASIC OPERATIONS FOR NON-ESSENTIAL BUSINESSES

Order #28 specifies additional minimum basic operations, while also creating additional restrictions that were not included in Order #12.

Non-essential businesses and their suppliers must operate under minimum basic operations

The order makes clear that non-essential businesses and supply chains for non-essential businesses are non-essential and shall only operate under minimum basic operations.

Minimum basic operations impacting all non-essential businesses

Non-essential businesses may continue to engage in necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or other related functions.

Restrictions for delivery services

Non-essential businesses may also fulfill deliveries or mail parcels so long as the operations are performed by one person in a confined space, including a car or truck. Order #28 does not make any accommodations based on the size of the business or volume of deliveries or shipments. The order also does not allow multiple employees to assist in the delivery of larger items.

Non-essential businesses must identify necessary employees

Non-essential businesses must determine which employees are necessary to carry out minimum basic operations, and the employer must inform workers of their individual designations. Businesses should be aware that the Frequently Asked Questions (FAQ) document accompanying Order #28 directs employees to contact local law enforcement to report order violations. While not required by the order, it is advisable to make this designation in writing.

What non-essential businesses should know

While Order #28 still allows non-essential businesses to engage in minimum basic operations, businesses should fully understand what operations they may continue to engage in. Some businesses may have already engaged in deliveries and mailings as minimum basic operations under the original order. Those businesses should revise their activities to comply with the limits of new order.

NEW RESTRICTIONS FOR RETAILERS

The order places occupancy restrictions on essential retailers, while allowing non-essential businesses and retailers to engage in minimal curbside pick-up services.

Impact to essential retailers

Essential retailers are now subject to occupancy limits, must establish lines to regulate access and are encouraged to adopt curbside pick-up. Stores with less than 50,000 square feet of customer floor space must limit the number of people (including employees) to 25 percent of the total occupancy limits. Stores with more than 50,000 square feet must limit the number of customers in the store at one time (excluding employees) to four people per 1,000 square feet of customer floor space, and must establish two hours per week of dedicated shopping time for vulnerable populations.

Impact to non-essential retailers

Non-essential businesses and retailers may engage in curb-side pick-up of goods, “if all of the operations are performed by one person in a room or confined space at a time, including a car or truck.” Goods may be purchased online or by phone, and must be pre-packaged by the manufacturer, distributor or store. Suppliers to non-essential businesses and supply chains for non-essential businesses are non-essential and shall only operate under minimum basic operations.

OTHER BUSINESSES OR OPERATIONS CAN NOW ENGAGE IN LIMITED ACTIVITY

Libraries, golf courses, and arts and craft stores

The order makes limited accommodations for public libraries, golf courses, and arts and craft stores to engage in limited activities. Public libraries may now provide curb-side pick-up of books and other library materials. Golf courses may open again, with restrictions including scheduling and paying for tee times online or by phone. Golf course clubhouses and pro shops must remain closed and carts are prohibited. Arts and craft stores may offer expanded curb-side pick-up of materials necessary to make face masks or other personal protective equipment.

Lawn care and construction services

Aesthetic or optional exterior lawn care or construction is now allowed under the extended order “if all operations are performed by one person in a room or confined space, including a car or truck.” Aesthetic or optional exterior work requiring more than one person is prohibited.

ENFORCEMENT

Order #28 is enforceable by local law enforcement officials, including county sheriffs. Violations of Order #28 are punishable by up to 30 days’ imprisonment, a fine of up to $250 or both. Employers should be cognizant of the employment implications that must be considered when determining how to proceed under Order #28. Godfrey & Kahn’s Labor, Employment & Immigration Law attorneys can help.