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Lawsuit Filed to Stop Publication of Businesses with COVID Cases

By Misha Lee, MHA Wisconsin Lobbyist

A lawsuit filed earlier this month seeks to prevent Governor Tony Evers and his administration from publishing a list of Wisconsin businesses that have had two or more confirmed cases of COVID-19 among their employees since June. The administration cited legal compliance with open-records requests from the media as their basis for needing to release the information. It’s relevant to point out that Governor Evers had originally stated earlier in the summer that it was his position that the information was not public and keeping it private helps public officials better manage outbreaks of COVID-19.

Wisconsin Manufacturers and Commerce (WMC), along with several other local area chambers of commerce, immediately brought a lawsuit seeking an injunction by the court when it was learned that Governor Evers’ Department of Health Services (DHS) had reversed course and was preparing to release a list of affected businesses. Subsequently, a Waukesha County circuit court judge issued a temporary restraining order stopping the release of the information. The judge’s temporary order will remain in place through the month of November while litigants in the case prepare and make their arguments to the court.

Read the lawsuit here. The legal challenge, in part, argues:

  • The records that the state plans to disclose are protected by patient-confidentiality laws.
  • Even if the information that the defendants plan to release were not explicitly protected by health-privacy laws, the open-records statute would not authorize disclosure of this information.
  • Disclosure would cause the members represented by the plaintiff irreparable harm.

If allowed to be published, the DHS list would include:

  1. Only businesses with 25 or more employees.
  2. The business name and the number of known or suspected COVID-19 cases among employees of the business.
  3. Information only from “closed investigations”, which are defined as businesses that had 2 or more confirmed cases within 28 days of each other, but have not had any subsequent cases within 28 days.
  4. Names of businesses that may have had no employees test positive, but still appear on the list due to being named in the context of contact tracing.

MHA strongly objects to the publication of this list and has urged the administration to reconsider its position. As stated in an email to the MHA membership, “The action taken by the administration does nothing to protect the health of the general public. Further, it undermines the amount of time, effort and expense that Wisconsin’s essential small retail businesses have invested in protecting their employees and their customers during this extremely challenging pandemic.”

The reputational and financial damage this action could cause thousands of business owners, particularly those businesses struggling due to the negative impacts from the pandemic, could be crippling. Identifying the names of businesses that had employees or customers who tested positive for COVID-19 gives the false impression that the employees or customers got the virus at their place of work or at a particular business location - when that is extremely difficult to determine. The release of business names and information could also expose small retail businesses to greater liability for lawsuits. The state Legislature has not acted on legislation that would provide protections for employers from frivolous COVID-19 related lawsuits.

Since the court’s injunction, the Department of Health Services (DHS) has not been able to provide any additional information regarding the list of businesses due to the pending litigation on the matter.

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