Weekly Insider, September 8, 2020

SEPTEMBER 8, 2020

GUEST SERIES

BUSINESSES NEED SAFE HARBOR DURING THE STORM OF A LIFETIME

BY JOHN SCHULZE

DIRECTOR OF LEGAL & GOVERNMENT AFFAIRS, ABC OF WI

You are probably as tired reading about COVID-19 as you are having to live in a world where we need to think about it every day. The pandemic has caused thousands of infections and the statewide shutdown order has cost hundreds of thousands of jobs in Wisconsin. It was only due to contractors’ decades of sound safety practices that prevented construction from being deemed as unessential as dentists, restaurants, and hair salons. Even though the construction industry in Wisconsin was deemed essential, it was not unaffected; everything from having to take a morning temperature to eliminating group lunch was added to the ever present – but bigger worry – about how the shutdown will affect the next job.

Finally, big and small businesses in other parts of Wisconsin’s economy are reopening, but the road to recovery is uncertain. As we plan for the needed steps to restart Wisconsin’s economy, it is vitally important that employers are able to focus on providing for their customers and making payroll; not worrying about lawsuits. Following federal, state, or local public health orders and recommendations can still leave an employer vulnerable to lawsuits alleging a business owner exposed a person to COVID-19. You may have already seen the TV and internet ads trying to recruit plaintiffs related to COVID-19. In a flashback of the McDonald’s hot coffee case, at least one lawsuit has already been led against the manufacturer of Purell hand sanitizer alleging that their claim that the sanitizer kills 99.9 percent of germs is misleading. The solution should include:

• Premises Liability Safe Harbor: Protections for all property owners/occupants who are good actors against frivolous lawsuits alleging a plaintiff was infected with COVID-19 at a specific premise. It is not business community specific and would protect homeowners, government entities – including schools and universities – and any other premises including outdoor events and festivals. The safe harbor would not protect bad actors. An entity should lose the liability exemption if they knowingly violated a public health order or spread COVID-19 by acting in a reckless, wanton or intentional manner.

• Limitation on Recovery from No-Injury Lawsuits: First, plaintiffs cannot recover if they have not been diagnosed as having COVID-19. Second, even if a plaintiff was diagnosed, they cannot recover damages if they were asymptomatic or had mild symptoms. Again, these protections should not protect bad actors. The limitation should not apply to cases where another’s act or omission that caused the exposure involved reckless, wanton or intentional misconduct.

• Employee Testing: Employers should be allowed to test prospective or current employees for COVID-19 without legal liability. Further, employers should be allowed to refuse to hire a prospective employee who tests positive for COVID-19 or refuses to submit a test. Finally, employers should be allowed to require an employee to take leave until they submit to a COVID-19 test, show the negative results of a test, or until they no longer test positive for COVID-19.

This is not about defending employers who recklessly or intentionally caused harm. This is about employers already struggling to stay in business, facing the very real threat of frivolous lawsuits that will push their employees out of their jobs and seriously undermine efforts to restart and rebuild the economy. The goal is to provide safe harbor for businesses who are doing their level best to keep their employees and the public safe from being sued by someone who allegedly contracted COVID-19 at their place of business even if they never got sick.

The government has provided safe harbor in extraordinary times before. As the nation prepared for Y2K, Congress passed a three-year ban on lawsuits over economic losses from related glitches. After the 9/11 attacks, the $38 billion victim compensation fund also eliminated punitive damages and protected airlines against liability for exceeding their insurance coverage for related claims. Already this year, Wisconsin Democrats and Republicans came together to help prevent lawsuits against companies that donate PPE equipment to health care workers fighting COVID-19 on the front lines. These were important first steps, but all Wisconsin employers need reasonable safe harbor protection from liability to serve the public to meet payroll while taking commonsense measures to protect employees and the public.

Either the state or federal government should act quickly and pass these temporary, targeted measures intended to protect businesses that are doing the right thing and will help stabilize the economy so the recovery can continue. We don’t want an “Open for Business” sign to mean “open season” on employers who are trying to do the right thing by restarting and rebuilding the state’s economy. Employers have enough to worry about.

NEWS FROM THE CAPITOL AND AROUND WISCONSIN

FISCAL YEAR 2019-2020 COLLECTIONS

The nonpartisan Legislative Fiscal Bureau released preliminary general fund tax collections for fiscal year 2019-20. Overall, collections are down less than 1% or by $112.6 million compared to previous estimates; however, higher than budgeted collections were enough to trigger a $105.9 million deposit into the state's Budget Stabilization (rainy day) Fund. The Fund will now be $761.8 million compared to virtually nothing when Republicans took over from Democrats in 2010. Final state general fund expenditures for fiscal year 2019-20 will be included in the state's Annual Fiscal Report due October 15th.

State Representative John Nygren (R-Marinette) and State Senator Alberta Darling (R-River Hills), Co-Chairs of the Joint Committee on Finance released the following statement:

"While state tax collections are down compared to previous estimates, the full impact of COVID-19 has not yet been felt by our state finances," Rep. Nygren said. "The COVID-19 impact will likely be felt in next year's collections. The next budget will be challenging making it all the more important that Republicans have put the state on a solid foundation with budgets that have grown our rainy day fund to the largest level ever."

"Because we were careful with the money taxpayers provided, our state finances are down, but not out," Darling said, "We will be adding to our already record-high Rainy Day fund. Those funds will help get us through this crisis without raising taxes on working-families in our state."

Gov. Evers' office did not issue a statement regarding the fiscal report.

SEN. KAPENGA INTRODUCES COVID-19 "SAFE HARBOR" LIABILITY REFORM LEGISLATION

On Tuesday, Senator Chris Kapenga (R-Delafield) introduced reform legislation designed to protect certain Wisconsin entities, such as schools and businesses, from predatory lawsuits as a result of COVID-19.

The bill would give a "safe harbor" liability exemption to owners, lessees, occupants, or individuals/entities in control of a premises as long as they follow public health orders and take reasonable precautions to protect public health.

"With many businesses struggling due to the impacts of COVID-19, the threat of a frivolous lawsuit is the last thing they need while trying to rebound. Most entities have adapted and taken precautions over the past six months to protect both their customers and employees. These businesses should not be living in constant fear of litigation for something that is beyond their control," said Senator Kapenga.

The bill would also apply these same liability protections to homeowners, schools, universities, and other entities.

"As students around the state return to school this week, many schools are starting in a virtual environment. For some districts across the state, this can be attributed to school boards fearful of being held liable for an increase in cases. This bill is needed to restore confidence, so our economy and our schools can return to a level of normalcy," Kapenga continued.

"By introducing this legislation, Wisconsin can join a growing list of over a dozen states that have taken the commonsense step toward protecting against predatory lawsuits as a result of COVID-19."

DWD: FEDERAL UNEMPLOYMENT SUPPLEMENT COULD TAKE NEARLY TWO MONTHS

According to Wisconsin Department of Workforce Development Secretary Caleb Fostman, it could take eight weeks before Unemployment Insurance recipients see the new $300 per week supplement being provided to Wisconsin by the federal government through FEMA.

The funds were made possible through an executive order signed by President Donald Trump, which created the Lost Wages Assistance program.

Frostman said that the delay will be caused by a need for the department to update its 50-year-old processing capabilities. That task will take over a month.

Wisconsin has also applied for the maximum four weeks of the $300 per week payment, Frostman said in an interview with Wisconsin Public Radio.

REPUBLICAN LAWMAKERS MACCO, STEFFEN PARTNER WITH LOCAL LAW ENFORCEMENT TO DIVERSIFY HIRING PRACTICES

Representatives John Macco (R-Ledgeview) and David Steffan (R-Howard) announced last week that they have partnered with Green Bay Chief of Police Andrew Smith to introduce legislation that would diversify hiring practices for local law enforcement.

"When there is so much division and disagreement on what to do next, we need to focus on what we can agree on. This bill will add another tool to local law enforcement's toolbox and allow them to tap into a well-qualified and diverse pool of candidates that want to serve their communities in a productive and positive way," said Macco.

Under current law, DACA recipients cannot serve as police officers or as deputy sheriffs. The proposed legislation would give local law enforcement agencies the authority to adjust their department policies and hire such individuals.

"These are people who can serve in the United States military and can be permitted to serve as state patrol officers. If we can trust them to defend the country, then it only makes sense to extend that same trust when they ask to serve and protect their communities," Steffan said.

DACA, or Deferred Action for Childhood Arrivals, is an immigration policy created by President Barack Obama in 2012. The policy allows some individuals with unlawful presence in the United States, who werebrough to the country as children, to receive a renewable two-year grace period from deportation, and grants them eligibility for a work permit in the United States. DACA recipients are commonly referred to as "dreamers."

LEGISLATIVE LEADERS SIGN ON TO LETTER URGING BIG TEN TO PLAY BALL

Assembly Speaker Robin Vos (R-Rochester) and outgoing Senate Majority Leader Scott Fitzgerald (R-Juneau) have signed on to a letter from Michigan House Speaker Lee Chatfield, urging the Big Ten to reverse course and play football this autumn.

The letter argues that the Big Ten is at a disadvantage as other conferences have decided against postponing or canceling their season.

"Recent actions taken by other conferences across the country to start football and other fall sports have places the Big Ten, its members and students at a disadvantage," the letter reads. "These athletes are losing a vital part of student life and are becoming less marketable to future employers with each passing week. Additionally, our local universities stand to lose hundreds of millions of dollars that support vital student scholarships."

In addition to Wisconsin, the letter was signed by legislative leaders from Michigan, Iowa, Minnesota, Ohio, Pennsylvania.

WEEKLY INITIAL UNEMPLOYMENT CLAIMS

Weekly Unemployment Insurance Claims:

Sunday, 1,526 (2020) vs. 460 (2019)

Monday, 3,487 (2020) vs. 364 (2019)

Tuesday 2,242 (2020) vs. 929 (2019)

Wednesday 1,902 (2020) vs. 648 (2019)

Thursday 1,683 (2020) vs. 606 (2019)

Friday 1,746 (2020) vs. 595 (2019)

Saturday 439 (2020) vs. 140 (2019)

Up-to-date information can be viewed by clicking here.

WEEKLY MEMBER POLL

Click here to take this week's poll

By clicking the link, you acknowledge that it is the policy of WPT to publish all comments that are submitted by members each week, which often include broad differences of opinion. WPT does not take responsibility for the individual views and opinions expressed herein. It is the right of WPT to remove responses that that the organization deems inappropriate.

WEEKLY MEMBER POLL RESULTS

What did you think of the guest column from Senator Chris Kapenga?

We must get our children back in schools.

I agree with school choice as long as the money follows the child. Example: child signs up for a new school. In a month decides to go back to old school. All the money stays with the new school, even though the child is no longer there.

Yes this should be the case all the time. $ the schools are getting per student should go to the parents staying home with the students.

Parents should always drive the decision process.

think it's a great idea for parents to decide what's best for thier children. plus a lot of working parents can't stay home to home school any longer. children need the social aspect of school as well as teachers expertise

The problem is that I see the outcome from ONE parent being negligent. It will cripple most of a small city. But the other side is, I hear the arguments for in person vs virtual schools, and I agree with them both. I'm very torn. I don't know what the smart choice really is....

I think doing this without a real plan will put a great burden on our public schools.

Aren't school boards an elected position to represent the people of the district. At our grade school there is in person education with the option by the parents to do virtual learning should the desire. Sen. Kapenga stated "I don’t believe we can sacrifice the education of an entire generation of students". What an overexaggeration! He's just pitching his love for school choice even though those schools potentially could become virtual also.

I disliked nothing.

Let the parents decide what is best for their children, tired of gov't and school boards raising children

The best way to empower the taxpayer-parents is to let them keep all of their school tax money and make them pay for their children's education wherever they wish to obtain it. This whole government-caused COVID shake-up is the perfect time to scrap the public schools. They have failed miserably.

Gov. Evers accepted President Trump's federal unemployment boost. Good idea or bad idea?

Get back to work

He really has no choice. He needs the money for the unemployed.

Evers created this mess. He should fix it instead of going to the feds for money

Paper is full of job listings, need some on job training

Why didn't this happen right away?

does not incentivize people finding jobs

Everyone needs to get back to work. Keeping high unemployment funds is only going to prolong the inevitable...everyone needs to work!!

If this makes it more lucrative for one to stay on unemployment this is not good. There are better ways of helping those who need it than making unemployment attractive.

I'm an employer and can't find help. There are jobs and good paying jobs that continue to go unfilled!

Higher unemployment benefits discourages job hunting.

The unemployeed will not want to go back to work!

Its good to see the gov. not refusing money

Many job openings in my area. People that are unemployed would rather get the money for nothing instead of working.

Lets see how Evers can manipulate this one.

The spring and summer break is over, everyone back to work! This crap has gone on long enough already. All those not working, are going to slow down the rest of us who haven't missed a day yet! We need parts, and they are not being made get on with it!

If King Tony would just open up the state and let people go back to work again, it wouldn't be needed. Let people look out for their own health.

Should President Trump have canceled his trip to Kenosha?

He is our leader and is welcome to see the destruction BLM has caused

As long as he does not continue to stoke division, its probably ok.

He represents all people...not just those that don't like him.

Absolutely not. He is making Evers and the mayor look like idiots.

DFL, Black Lives Matter, and media are just using it as another negative

I don't care what party you are you don't turn away the President of the United States of America.

We need leadership and we have none in Governor Evers!

What kind of brain dead idiot would think that it would be smart to stop the President from coming to Wisconsin? I think him coming to Kenosha will be a good thing.

He loves the limelight, can he just once be presidential??? Doubt it.

He is a devisive man and will only make a bad situation worse.

I think he should go to Kenosha as a insult to the Democratics

It's a waste of airplane fuel and taxpayers dollars for the secret service.

A lot of locals want him to see the damage.

Evers created most of the problems by making bad commits about the cops before he new what really happened, now he has blood on hands, because two people are dead.

Trump should come to Kenosha --- Period!

All the craziness lies at Ever's feet. He and Barnes created the uproar over a shooting that was totally justified! Evers is a political hack and a bad one at that. Its time to recall both of them before they destroy this state!

He is the PRESIDENT. Should be able to visit anywhere in this country if deemed necessary. I think we should all seriously consider canceling Evers next trip to Madison in two years.

The legislature has decided not to take up Gov. Evers and legislative democrats' bills on policing reform. Good decision or bad decision?

Some simple reforms or money for better police training could help here.

It will not change anything. Two parent households with proper discipline are the only answer

Let's support the police and provide better training . They always have to watch their backs

There needs to be time to gather information from all parties involved to make sure what changes are made will still allow our police force to protect us and keep the respect they deserve. The police need to respect that all lives matter.

I just wish the legislation would solve some problems instead being babies and not doing anything.

no more special task forces/committees - time for government to get it together and work together

We don't have an out of control police force. We have a police force that is being hobbled in it's ability to do it's job, and it's making a very small number act out. I think we need to focus on this issue differently. I just don't know how yet.

So much for Bi-Partisan

What are they waiting for?

Why not?

Task force Tony needs to be impeached!

Evers trying to look good again but is ugly

Take their time to put a common good package together

I do not trust Evers .

You can't make new laws in few minutes, that weeks, maybe month to get everything correct.

The task force is a good idea, although Evers doesn't think so because he didn't call for THIS task force! What a joke we have for governor!

I think they should have gone just to vote the Evers bills down.