New order limits mass gatherings to reduce COVID spread

Statewide measure restricts indoor public groups to 25% of building capacity as pandemic surges

Customers eat and drink at the Brat Stop, in Kenosha, Wis. on May 15, shortly after the state's Safer at Home order was thrown out. The Evers administration issued a new health order limiting public indoor gatherings to 25% of building capacity starting Oct. 8. (Photo by Scott Olson | Getty Images)

With COVID-19 infections three times what they were a month ago, Wisconsin Gov. Tony Evers instituted a new limit on indoor mass gatherings Tuesday in another effort to curb transmission of the coronavirus.

The new order, issued by state Department of Health Services (DHS) Secretary-designee Andrea Palm under Evers’ direction, officially takes effect Thursday, Oct. 8 and expires Nov. 6. It limits indoor gatherings in public spaces to 25% of the capacity as rated by local authorities.

It also includes exemptions for a variety of gatherings, including religious services, political events, schools, colleges and universities, healthcare facilities and grocery stores.

At a briefing for reporters sponsored by DHS, Evers compared it with rules ranging from limits on how many deer hunters can kill in a season to how fast drivers can go.

“We have expectations in other areas,” Evers said. “This is just one more — and is one that will be temporary.”

The exponential increase in COVID-19 infections prompted the new order, Evers and Palm said. As of Tuesday, DHS had recorded 136,379 people who have tested positive for the virus. The current seven-day average of new cases is 2,346, said Palm, nearly three times the figure from a month ago of 836. The death toll has reached 1,399.

“We’re seeing increased COVID-19 hospitalizations across the state, and every region is reporting current and imminent hospital staffing shortages in one or more of their facilities,” said Palm. “We are in a crisis.”

According to the Wisconsin Hospital Association, 853 people are hospitalized across the state with COVID-19 — nearly double the peak of 446 patients last spring — and 216 of the current patients were reported in intensive care as of Tuesday.

Palm said the Safer at Home order that Palm and Evers issued in March and later extended, until it was struck down by the state Supreme Court in a 4-3 vote on May 13, helped Wisconsin reduce the early spread of the virus and spared the healthcare system as well as public health agencies from being overwhelmed.

“Today, we are in a worse place than we were in March. And so we need to think like that again. Please stay home when possible and wear a mask when you go out,” she said. “The disease activity level of COVID-19 in Wisconsin is so high that going to a gathering puts you at very high risk of exposure.”

Mass gatherings “are a key way this virus spreads. So we must act to limit indoor gatherings to stop the spread, reduce illness and save lives.”

The statewide order allows local communities to institute stricter rules, Palm said, and DHS is encouraging them to do so. Last week, the department distributed guidelines for local health departments to use in developing their own strategies for reducing the spread of the virus in their communities.

All over the state

In declaring a statewide order, the governor’s office and DHS are emphasizing that COVID-19 is present everywhere in Wisconsin. Evers underscored that point by noting the strain on the healthcare system in the Fox Valley.

“Just this last week, more than 200 doctors in Brown County called on elected officials and individuals to do their part and help stop the spread of this virus,” he said. He read from their statement: “To say that providing care to these patients is severely straining our local hospitals, healthcare workers and health systems is a drastic understatement. There’s no other way to say it. We are overwhelmed.”

A concerted attack on the virus, Evers said, will ensure the future of the economy. “We need to do this, not just for our healthcare providers, but also for Wisconsin small businesses,” he said. “The sooner we get this virus under control, the sooner we can get back to the activities we all enjoy.”

On that front, Evers announced nearly $110 million from the state’s CARES Act allotment will go to help a wide range of small businesses, including another $50 million in grants to small businesses in hospitality and personal service, such as hair salons and barber shops, through the Wisconsin Economic Development Corp., $20 million for the lodging industry and $35 million divided among live performance venues, movie theaters and nonprofit cultural institutions, as well as $4 million for tourism marketing groups in the state. The funding follows another $47 million that Evers announced Monday to provide child care and healthcare navigation assistance as well as energy and rental assistance.

In announcing the new mass gathering limits, Evers acknowledged the fatigue  Wisconsinites are feeling after months of the pandemic.

“I know we are all tired,” he said. “We are all frustrated. And we just wanted to get back to our Wisconsin way of life. You and me both. But at the end of the day, whether we like it or not, we have to change the course of this virus and that’s going to take united effort.”

Repeatedly, Evers and Palm returned to the importance of staying home, wearing masks, avoiding large gatherings and frequent, thorough handwashing.

“We need everyone to think about their family members, friends and neighbors and to look around and see what carelessness and apathy can do,” Evers said. “To see how one case can turn into 12 in a blink of an eye. How one dinner party or one wedding can lead to weeks of recovery and how our economy, our communities and our states go backward every time one person or group disregards public health measures.”

Reaction

The new order was unveiled the day after a judge heard arguments in a lawsuit brought on behalf of three plaintiffs in Polk County who want to overturn the state’s mask requirement. As of Tuesday afternoon, the judge had not yet ruled on a temporary injunction petition from the plaintiffs in the lawsuit, who are claiming that since the COVID-19 did not end after an earlier health emergency that Evers declared expired May 11, the governor’s office has no right to declare a new emergency due to the pandemic.

Evers said Tuesday he was confident the governor’s office would win the mask lawsuit, and, if there is one, a court challenge to the new mass gathering limit. A legal battle over health orders “makes for great theater,” he added, but “does nothing to make sure that people are safer.”

Ryan Nilsestuen, Evers’ chief legal counsel, said the capacity order was drawn up based on an existing metric — capacity limits set by local fire inspectors — “because people understand them. They’re already in place.”

He expressed confidence it would withstand a legal challenge

“I have no doubt that we’ll probably see litigation on this order as well,” Nilsestuen said. “That said, this is a very targeted order. It’s using DHS authority that the Supreme Court did not touch in the Safer at Home decision.”

A provision that allows DHS “to limit and regulate public gatherings” was “the one part of the Safer at Home order that was not overruled by the Supreme Court,” Nilsestuen said. “And that’s exactly what this order does.”

In contrast to the aggressive GOP responses to Evers’ mask orders, only two Republican lawmakers put out statements as of late Tuesday. State Sen. Chris Kapenga (R-Delafield), accused Evers of acting “unilaterally,” which he said contravened the state Supreme Court’s ruling in May ending Safer at Home.

Sen. Steve Nass (R-Whitewater) called the capacity-limit order “illegal and unenforceable” and charged Evers and Palm were acting out of “politically motivated purposes relating to the November election,” although the statement did not explain what that meant. But Nass also lashed out at Assembly Speaker Robin Vos (R-Rochester) for blocking the Legislature from convening to end both the Sept. 22 health emergency and the mask and gathering-limit orders.

Two business lobbying groups were critical. The National Federation of Independent Business Wisconsin chapter stated the capacity limits would “kill Wisconsin jobs and further damage already struggling small businesses,” while Wisconsin Manufacturers & Commerce claimed employers have already been following “strict safety guidelines” and blamed the recent spike on “individuals…not following” them.

The Wisconsin Hospital Association said it was studying the order, and added: “Wisconsin is at a critical point in its COVID fight and there is no question that we must all do better and must do more to turn the tide of COVID in our communities. We must get past our differences and work together.”

Meanwhile, the Wisconsin Medical Society endorsed the measure, noting that large gatherings were playing a role in the recent spread of the virus.

“What’s happening in our state right now with COVID-19 cases is alarming,” stated the group’s board chair, Dr. Jerry Halverson. With hospitals reaching their capacity, “that threatens everyone’s health.”

Outagamie County Executive Tom Nelson stated his support for the order, pointing to the “alarming growth of COVID cases in the Fox Valley.

Dane County Executive Joe Parisi also supported the mass-gathering order, and in a statement issued more than two hours before those of Nass or Kapenga, he took a shot at the Evers’ critics in the Legislature: “It’s long past due to take the politics out of this pandemic — people are needlessly getting sick and dying because denial and scoring political points have taken precedence over public health and safety.”