In late February, the Wisconsin State Legislature passed a bill, quickly signed by Governor Evers, providing broad immunity from civil liability due to an act, or a failure to act, that led to a person’s exposure to the 2019 novel coronavirus (COVID-19). This legislation affords a level of protection to businesses, schools and other organizations.

WHAT THE WISCONSIN COVID-19 LIABILITY SHIELD COVERS

On its face, the liability shield, found in the newly created Wis. Stat. § 895.476, is straightforward. The law ensures that “an entity is immune from civil liability for the death of or injury to any individual or damages caused by an act or omission resulting in or relating to exposure, directly or indirectly, to the novel coronavirus … in the course of or through the performance or provision of the entity's functions or services.” 

The definition of entity in the legislation is broad, encompassing businesses, governments, schools and non-profits, and extends to an entity’s employees, agents, independent contractors and even unpaid volunteers.

The immunity shield is in addition to any immunity already provided, such as workers’ compensation protection for tort claims by employees against employers.

WISCONSIN COVID-19 LIABILITY SHIELD LIMITATIONS

The law is retroactive, but only back to claims that arose on or after March 1, 2020. It does not apply to cases already filed with courts prior to Feb. 27, 2021, the law’s effective date.

The liability shield will not apply “if the act or omission involves reckless or wanton conduct or intentional misconduct.” The terms reckless and wanton are not defined in the statute. However, Wisconsin courts have used the terms to describe instances in which a person’s conduct demonstrates an indifference to the consequences of their actions. Thus, the new law will not protect businesses from intentional or egregious conduct that puts someone at risk of contracting COVID-19.

WHAT COMES NEXT?

Wisconsin’s COVID liability shield is broad, but like any grant of immunity, its exact parameters will be sorted out in court in the coming months and years. Much of this will likely center around what constitutes reckless or wanton conduct in this context. As a result, staying in contact with legal counsel remains critical as the Wisconsin courts interpret and apply this new law.