The first bill that Republican lawmakers have voted on to address the coronavirus pandemic in eight and a half months cleared the Assembly Health Committee Tuesday, predictably along partisan lines.
While the committee’s five Democrats all voted against it and no Democrats in either house of the Legislature played a role in writing or sponsoring the legislation, Assembly Speaker Robin Vos (R-Rochester) stuck to calling the bill “bipartisan” and has vowed to put it on a fast-track trip to the desk of Gov. Tony Evers by the weekend.
Whether the governor will sign it when it reaches his desk looks doubtful. At a media briefing that began 30 minutes after the committee public hearing on the legislation ended and two hours before the panel voted, Evers acknowledged that “the likelihood of a veto is probably pretty strong.” But he sidestepped a more certain assessment, saying that he hadn’t yet seen the bill, “So I don’t want to forecast something that isn’t accurate.”
Democrats in the Legislature have already signaled their opposition to the bill as both inadequate to the needs of Wisconsin residents suffering in the pandemic and studded with a series of unacceptable provisions among its 44 items.
Chief among those is the section of the bill that took center stage at the Health Committee’s two-hour public hearing over the lunch hour Tuesday: providing near-blanket legal immunity for businesses, nonprofits and schools from lawsuits accusing them of negligence if a customer or employee blames them for exposing them to COVID-19.
The parties are also divided over a provision that would allow local health officers to institute health orders for only 14 days before they would have to win the approval of their corresponding governmental body — a city council or a county board, for example. The orders would be subject to a new vote every two weeks.
Defining a ‘compromise’
An outline Vos proffered in December would have put much tighter restrictions on the powers already codified in state law that allow health officers to close businesses for public health reasons.
Describing the new language as “a compromise [with] Gov. Evers,” Vos said, “Elected officials, the ones ultimately accountable to the people, should vote on any order that would force someone to close their doors or restrict their capacity.”
A similar provision in the Republican bill would require local school boards to vote by a two-thirds majority before a school could begin all-virtual instruction in response to an increase in the spread of the virus. That vote, too, would have to be held again every two weeks for school-wide virtual classes to continue.
Open-enrollment policies would be relaxed allowing parents to transfer their children to other school districts in search of in-person learning as well.
Another controversial element of the bill would bar requiring anyone to get the vaccine for COVID-19. While winning the support of vaccine skeptics, it has raised concerns among health care professionals, including doctors and nurses.
Attorney General Josh Kaul offered a caustic summary of the legislation Tuesday, tweeting: “The gist of the @WIAssemblyGOP COVID bill seems to be that they think we’re doing too much to fight COVID. As vaccine distribution ramps up, we need to crush the spread of the virus and get back to normal ASAP, not take an approach that will result in more harm.”
The Republican bill followed the rejection just before Christmas of Evers’ attempt to focus legislation on items that both he and the leaders of the Legislature had agreed on in a series of talks in December over their divergent priorities for new COVID-19 legislation.
Evers referred to that episode when he was asked for his reaction Tuesday to the new GOP legislation. “Obviously disappointed that the bill that I introduced, that had full support of every piece of that bill … by both the Senate and the Assembly Republican leadership — they decided to set that aside and pass things that they know that I may have trouble with,” the governor said.
The portion of the bill giving sweeping legal immunity for exposing customers or employees to the virus took up most of the hearing’s time.
Along with nonprofit organizations, “this bill will protect schools and businesses under reasonable liability measures, allowing them the opportunity to stay open while following safety guidelines,” Vos said in his testimony to the Health Committee. Vos said the protection will be extended to the state’s Indian tribes with a floor amendment after they were omitted because of “a drafting error.”
Vos acknowledged it was his “understanding” that not a single COVID-19 liability lawsuit has been filed in Wisconsin since the pandemic, but maintained such protections were necessary nonetheless.
“We want to make sure that we have the certainty as we move into the next phase where now we have vaccines, fewer people will need to wear a mask,” he said.
The provision won praise from several business lobbyists. Cory Fish, general counsel for Wisconsin Manufacturers & Commerce, which had been campaigning for liability immunity since the start of the pandemic, said the absence of lawsuits doesn’t negate their threat.
As difficult as it is to prove an allegation that a particular venue might be to blame for the transmission of the virus, Fish testified, lawsuits of that nature typically never reach a jury trial.
“Instead, they’re settled long before you ever get to a jury,” he said. “And they’re settled because of the significant costs of litigation.”
Kristine Hillmer, president of the Wisconsin Restaurant Association, claimed that local health officials nationwide who have urged against in-person indoor gatherings “are scapegoating restaurants and other public-facing businesses as places to avoid or even worse, [to] close in order to protect the public.”
Yet, “there’s no proof linking restaurants that enact COVID-19 mitigation best practices as sources of COVID-19 outbreak clusters,” she asserted. “Our industry has become a major fall guy for this pandemic, which also makes us a major target for frivolous lawsuits over exposure to COVID-19.”
Milwaukee restaurateur Amanda Dixon, however, reflected a contrasting perspective.
Dixon’s establishment, Lazy Susan, closed to in-person dining in March even before the Evers administration’s Safer at Home order required restaurants and bars, along with many other businesses, to stop on-premises service. She has stuck to take-out service only — even though that order was lifted in May and even though she might qualify to open up for in-person dining under Milwaukee Health Department guidelines.
“I will maintain take-out only because my customers will not feel confident to dine in, no matter what capacity we open the state as, unless we have a cohesive plan to help mitigate COVID” in Wisconsin, Dixon testified. “I’m not worried about a lawsuit. I don’t think my customers are going to sue me thinking they got COVID in my establishment.”
Dixon appeared with Shawn Phetteplace, Wisconsin manager of Main Street Alliance, a small business advocacy group that sets itself apart from other business lobbyists in many of the policies it embraces.
“We want to support policies that actively combat COVID, not create worse public health outcomes that prolonged the pandemic,” Phetteplace told lawmakers. “The immunity clause in the bill would prolong the pandemic. It is far too broad and would only encourage irresponsible employers to cut corners and costs at the expense of the health of their staff, customers and community.”
Instead, he said, the state “should help small businesses that are committed to operating as safely as possible” — including setting “enforceable, industry-specific, science-based health and safety standards” as well as providing financial aid that can help small businesses remodel and provide personal protective equipment to employees. The liability immunity “is a giveaway to big business that hurts responsible small businesses that are already protected under state law.”
‘Reckless or wanton’
Vos described the liability immunity language as modeled on a bill that was passed in North Carolina, which like Wisconsin has a Republican-majority Legislature and a Democratic governor, “so it was obviously a compromise between both parties.”
But Heath Straka of the Wisconsin Association for Justice, which represents plaintiffs’ lawyers, disputed that description. The Wisconsin bill’s liability protection has “more aggressive language than North Carolina,” Straka said.
The Wisconsin bill would allow lawsuits only in instances of alleged “reckless or wanton” conduct. Straka called that exception too limited. That is especially so, he said, because the measure specifically states it would not be considered “reckless or wanton” to violate a government health order restricting the size of gatherings.
The plaintiffs’ bar generally opposes any kind of liability immunity, but the organization could support the principle that “citizens and businesses that do follow rules and take reasonable steps to ensure the health and safety of their employees should not have to fear litigation,” Straka said.
“But to give broad immunity as this bill does in effect says, ‘OK, do what you want, especially as it relates to capacity, and you’re going to be immune,’” he added.
No questions from Democrats
For all the conflicting views in testimony over the legislation, one group of voices was noticeably absent from Tuesday’s hearing.
Democrats stayed away, citing the absence of a requirement for witnesses or lawmakers to wear masks to help prevent the spread of COVID-19, and the refusal of Assembly leaders to permit legislators to attend virtually despite the pandemic. Instead, they watched it remotely on Wisconsin Eye, where they were unable to join in questioning the witnesses.
At the end of the hearing, Rep. Joe Sanfelippo (R-New Berlin), the Assembly Health Committee chair, remonstrated the absent lawmakers, alleging that by not showing up they were not “giving the respect to the people who have come to testify here on this bill.”
When the time came to vote on the bill later in the afternoon, four of the five Democrats were present in person and Rep. Jimmy Anderson (D-Fitchburg) attended remotely under an accommodation that the Legislature agreed to in 2019 because his physical disability makes attending particularly onerous.
Before the vote, Anderson told Sanfelippo he was “hurt” by the Republican’s comments earlier.
The remarks were “disrespectful,” more so because of “how easy it is to accommodate me, setting up the telephone for me to be able to call in,” Anderson said, “and to not do so for my colleagues who are simply concerned about their health being concerned about the health of the people that they come in contact with — their families or their loved ones.”
“All right — so noted,” Sanfelippo replied brusquely, and called the roll for the vote.