COVID UPDATE: Wisconsin Employers Gain Liability Protection

Attorney Eric Klemm

On February 26, 2021, Governor Tony Evers signed into law 2021 Wisconsin Act 4 (link to legislation here) that, among other things, provides Wisconsin employers protection from COVID-19 related civil law claims from their employees or the public at large.  Employers that are covered by this new law are immune from civil liability for death or injury to an individual caused by exposure to the SARS-CoV-2 (COVID-19) virus, in most circumstances.

The new law, Wis. Stat. 895.476, covers both COVID-19 as well as variant strains, and insulates companies, schools, tribes, as well as business owners and their employees individually.  This should bring some reassurance for business owners that they will not be in danger of a lawsuit for being accused of spreading the virus that has affected every part of the globe.

However, this new law doesn’t mean that business owners or their employees can feel free to ignore public health rules and regulations. The immunity from liability does not apply if the exposure to COVID-19 is due to reckless or wanton conduct or intentional misconduct.  What constitutes “reckless” or “wanton” conduct, as opposed to merely “negligent” conduct, is highly debatable, and it is very possible that Wisconsin state and federal courts will ultimately decide the definitional boundaries of these terms.  Therefore, business owners should be sure to follow public health rules respecting social distancing, mask usage, and proper handwashing to avoid being dragged into court by a potentially very sympathetic plaintiff (i.e., the estate of a former employee or customer who died from COVID-19).  As previously stated in these Neider & Boucher, S.C. COVID-19 blog posts, employers who become aware that their employees are engaging in particularly dangerous activities that could jeopardize the safety of the employers’ other employees or customers should strongly consider taking proactive steps to mitigate the risk of their employees transmitting the illness to others.

As the COVID-19 virus situation continues to evolve, and we get closer to the light at the end of the tunnel, Neider & Boucher will continue to advise you on how to navigate the ever-changing legal landscape surrounding the COVID-19 pandemic. Continue to check this website for further updates.