Commentary from Counsel - A Shot in the Arm - Wisconsin's Long-Awaited COVID Relief and Immunity Legislation

As health care providers across the state rush to vaccinate eligible Wisconsinites, elected officials in Madison added an additional group to the immunization list: the business community. In late February, the Wisconsin legislature passed a bill, quickly signed by the Governor, aiding two groups both hurt by the pandemic but not typically lumped together: businesses and the unemployed. For Wisconsin jobseekers, the bill waives the oneweek waiting period for unemployment benefits and provides the funds necessary to update the state’s outdated technology supporting the unemployment system. For businesses, schools and other organizations, the law offers immunity from civil liability due to an act, or a failure to act, leading to a person’s exposure to Covid-19.

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 law’s definition of “entity” is broad, encompassing businesses, governments, schools, and non-profits. Further, the law’s protections extend to an organization’s employees, agents, independent contractors, and even unpaid volunteers. The statute also clarifies that the immunity provided by the law is in addition to any immunity already provided, such as workers compensation protection for claims by employees against employers.

That said, the law is not without limits. First, the law is retroactive, but only back to claims that arose on or after March 1, 2020. And, it does not apply to cases already filed with courts prior to February 27, 2021 (the law’s effective date). Second, 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.

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. For example, is a business’s failure to enforce the Governor’s executive orders mandating face masks wanton or reckless? Is it intentional? Moreover, what if a business exposed one of its patrons to Covid, but it’s not clear whether such exposure occurred before or after March 1, 2020, given repeated contacts during that period? If medical records or expert testimony establish exposure occurred post-February 29, 2020, the case would likely be dismissed, but the business may have incurred significant defense costs by that point.

As a result, it is critical that you stay in contact with legal counsel to remain up to date on how Wisconsin courts interpret and apply this new law. Doing so will not only help you better advise your clients. Stay on the lookout for future columns on this topic once the law has been tested in the courts.