Members of the state Senate 2019 (Photo by Melanie Conklin)
The stripped down state Senate COVID-19 response bill that was given a public hearing on Monday has shed many of the controversial provisions from the Assembly version that passed the lower house last week.
Gone are bans on mandatory vaccines for employment, required school board supermajority votes to convene virtually, prohibitions against closing houses of worship and other provisions that could cripple public health officials’ authority.
What remains are mostly common-sense measures that were in the first COVID-19 bill that the Legislature passed last April and Gov. Tony Evers quickly signed into law. Many are simply extended, such as removing the one-week waiting period for unemployment benefits, as the pandemic has dragged on far longer than most people anticipated nine months ago.
The narrower Senate version keeps just two major, new provisions from the Assembly version that the Republicans seem to be daring Evers to veto.
The pair of items — highlighted by Senate Majority Leader Devin LeMahieu in his testimony before the five-person organizational committee that was used to rush the bill forward — are what Republicans want to focus on.
The first measure requires that one in-person “essential visitor” be allowed for every resident in nursing homes and assisted living centers. Relatives and other loved ones of these residents have been restricted from visits during much of the pandemic to control the spread of the virus.
“I’m sure many of you and your offices have heard from people whose parents or grandparents are struggling in nursing homes or assisted living facilities,” said LeMahieu. “And it’s just been heartbreaking that they haven’t had the opportunity to see their loved ones. So we felt that was an important thing to have in this bill.”
The second item is a measure that Wisconsin Manufacturers & Commerce and other Republican allies in the business lobby spoke in favor of at the hearing. It is a sweeping protection for employers from lawsuits for infections or deaths resulting from the coronavirus, even if the business fails to follow public health orders.
Its only exception is for “reckless or wanton conduct or intentional misconduct” — but the bill explicitly states: “Noncompliance with any applicable national, state, or local order requiring entities to close or limit capacity does not constitute reckless or wanton conduct or intentional misconduct.”
This get-out-of-jail free card for business drew the most attention, praise and derision at the Senate hearing. But it was more complex than just big business praising Republicans for another handout.
Under the provision, a business, school, nonprofit organization or Indian tribe cannot be sued for causing death, injury or damages to someone else due to the virus — either by its actions or by its failure to act.
“In America, in modern litigation, out-of-court settlements are the norm to avoid incredibly high attorneys fees as well as the reputational damage that comes from modern litigation, which is litigated just as much in the public’s eye in the media as it is in any courtroom,” said Cory Fish, WMC’s general counsel. “And that’s really what we’re asking you to protect Wisconsin businesses from today.”
Democrats opposing the bill must take a stand opposite educational institutions that are traditionally their allies and have been hit very hard by the pandemic, straining budgets, enrollment and livelihoods.
The first speaker invited by Senate Republicans to testify was Rolf Wegenke, the president of the Wisconsin Association of Independent Colleges and Universities, which represents 23 private nonprofit institutions of higher learning. He said that a survey showed his members will have $245 million in unbudgeted costs as a result of the pandemic.
“Liability reform is an issue of protecting the public good,” Wegenke told the senators. Speaking virtually, he said that as an issue of fairness, private schools should get the same immunity as public, taxpayer-supported schools. “We are not asking for blanket immunity … liability reform is an issue of reasonableness.” He concluded, “We are counting on you and your help to keep us keeping on.”
Asked by Senate Minority Leader Janet Bewley if he realized that institutions that are non-compliant with public health orders are still eligible, he responded that he had not seen that provision.
Heath Straka, speaking for the Wisconsin Association for Justice, which represents plaintiffs’ lawyers, testified that the legal immunity language was misguided.
Frivolous lawsuits aren’t filed, he asserted — because the sanctions against lawyers who file them are too severe. He said that the only COVID-19-related lawsuits in the state have been between businesses and their insurance companies who have denied their business-interruption claims. Lawsuits by individuals claiming a business is at fault for exposing them to the virus “have not been brought,” Straka said.
The association he represents has supported the idea of a limited immunity if the organization being sued follows safety standards, he added. But allowing lawsuits only in the case of “reckless conduct” or “intentional regard” uses a standard for awarding punitive damages — “a legal standard of liability that we reserve for our very worst actors.”
That controversial provision — giving businesses a pass even if they willfully flout health laws — as written could well draw a veto from Evers, even with other controversial items removed. But for the governor, the legislation presents a complex problem.
To get rid of the liability shield given to a business even if it shirks the law, Evers would also have to veto helping schools and tribes avoid liability — plus shoot down allowing granny to have visits from a loved one. Evers has not stated a position on either measure, and he stopped short last week of a firm veto threat on the Assembly bill, while indicating he was leaning that way.
However, a month ago, Ryan Nilsestuen, chief legal counsel for the governor’s office, criticized the Republican leaders’ focus on the legal immunity provision.
“This is something they’ve called for repeatedly — warning of a tsunami of litigation related to COVID-19” in the early months of the pandemic, Nilsestuen said at a Dec. 10 media briefing with Evers. “Well, we’re in December. We’ve yet to see this tsunami of litigation. It’s really problematic when you want to provide protections against litigation, but you don’t want to do anything in terms of mitigating the virus or protecting people.”
At the hearing Bewley called into question the intentions of the Republican authors of both bills to actually write a bill that can become law. Turning to LeMahieu, she queried, “Do we know that the governor will sign this legislation?”
LeMahieu responded by saying that while Republicans have been “running things by” the governor’s office, he did not know whether Evers intended to sign the bill.
Skinny Senate version
“With the expiration of many of the provisions of Act 185, which was passed last April, in a bipartisan nature, it was clear to the Legislature that we needed to renew many of the essential timelines,” said LeMahieu in his own testimony kicking off the Senate Organizational Committee’s public hearing. He criticized Evers for putting out “his so-called compromise bill, which wasn’t a compromise, but had some very important provisions in it” and said he and Vos kept working to make a bill.
Last week, on the eve of the Assembly vote, LeMahieu said Vos’ bill wasn’t what Senate Republicans wanted, causing tension between the two GOP legislative leaders. On the radio on Monday, LeMahieu took the blame for that kerfuffle explaining that he is new to the job, and saying they are working it out now.
Two highly controversial items that were dropped from the Senate version were new limits in the Assembly bill on the power of local health officers and language that would have forbade employers from requiring employees to receive the COVID-19 vaccine.
A handful of the speakers at the Senate public hearing showed up to support the Assembly version of the bill, but registered against the Senate version because they did not want to see any vaccines of any kind mandated. One called such a mandate “an incredible abuse of power.”
The rest of the Senate version’s non-controversial provisions were in both the Assembly bill and in the proposal Evers drafted in late December seeking to capture items that he and GOP legislative leaders had agreed on in talks over the course of several weeks during November.
They include guarantees for Medicaid coverage for COVID-19 treatment and vaccines; various provisions to make it easier for the state to transfer employees, employ limited term employees and temporarily hire back retired employees; continued restrictions to keep health insurers from imposing cost-sharing for COVID-19-related coverage; and extended flexibility to hire health care workers from out of state.
Extensions or reinstatements of provisions passed in the Legislature’s COVID-19-related legislation last April included a provision allowing the state Department of Public Instruction to grant various waivers for charter and voucher schools under the state’s school-choice laws.
The liability pass is reason enough for Sen. Chris Larson (D-Milwaukee) to vote against the bill on Tuesday when the Senate meets to take it up at 11 am. “As written, I will not be voting for it, as it includes broad liability shields for businesses that flout local COVID orders,” Larson tweeted. “It also does very little to help responsible businesses that are struggling and need funds to survive.”
Sen. Steve Nass (R-Whitewater) also plans to vote against the Senate bill — but because he liked the Assembly version better and wants the Senate bill to go even further: forcing school districts to compensate parents whose children received virtual education, reopening all of state government and expanding the school voucher program for private schools.
“The committee changes are meant to placate Governor Evers and stripped from the bill many provisions advanced by Assembly Republicans last week,” said Nass in a statement, adding that he wants to “prohibit the excessive powers of both state and local public health bureaucrats to control every aspect of our daily lives.”
His conclusion: “ I will have to vote against this weak and ineffective Senate version of the bill.”
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