As COVID-19 cases continue a rapid increase throughout the state, Governor Evers directed the Wisconsin Department of Health Services to issue Emergency Order #3 (“EO 3”), to go into effect on October 8. EO 3 limits public gatherings throughout the state until November 6, 2020. For our Dane County readers, please note that this order does not replace current local Dane County order, which can be found at Public Health of Madison & Dane County. Also, we previously broke down the current Dane County Order KEW Tips, in our article titled: Dane County Requires Face Masks Starting July 13, Note, that where EO 3 is more restrictive than the current Dane County Order, EO 3 will control. Nothing in EO 3 supersedes more restrictive local orders.
Public Gathering Limitation
EO 3 limits all public gatherings in Wisconsin to no more than 25% of the total occupancy limit of a room or building.
Indoor spaces without an occupancy limit for the room or building, such as an event open to the public but held at a private residence, are limited to no more than 10 people. Anyone who violates EO 3 is subject to civil forfeiture, in the form of a fine up to $500, under Wis. Stat. § 252.25, but not imprisonment.
Note, this is an example where EO 3 is now more restrictive than the current Dane County Order, which allows 50% capacity, but as of October 8, 2020 will now be subject to EO 3.
What is a “Public Gathering”?
A public gathering is an indoor event, convening, or collection of individuals, whether planned or spontaneous, that is open to the public and brings people together who are not part of the same household in a single room. Places that are open to the public include:
- Rooms within a business or facility that allow the public to enter.
- For example, the sections of an electronics store open the public are limited to 25% occupancy. EO is silent on whether employees are counted in calculating whether the occupancy limit is reached.
- Ticketed events where tickets are available to any individual or any individual within a specific class of people, even if the tickets are free. For example, movie theaters are subject to this rule as they sell tickets to the public. Similarly, a ticketed event specifically for lawyers must comply if the event is open to all lawyers.
Places that are not open to the public include:
- Office spaces, manufacturing plants, and other facilities only accessible by employees or authorized personnel.
- In the same electronics store hypothesized above, any parts of the store that are employee-only and off-limits to customers are not bound by the 25% occupancy limit.
- Invitation-only events that exclude uninvited guests.
- A private residence unless the private residence is the site of an event open to the public.
Are there any exemptions to this order?
Yes! There are a number of exceptions. The following are exempt from limitations on public gatherings:
- Child care facilities and 4k-12 schools.
- Placements for children in out-of-home care such as foster or group homes.
- Institutions of higher education.
- Health care facilities and public health operations including biotechnology companies, midwife practices, massage therapists, acupuncturists, and chiropractors.
- Human services operations like assisted living facilities, shelters, home based services and supportive home care, and field offices that provide help to determine eligibility for or provide access to basic needs.
- Public infrastructure operations including food production, storage, and distribution, airports, and public utilities.
- State and local government operations and facilities, including polling locations and facilities under the control of the Wisconsin Supreme Court or the Wisconsin Legislature.
- Church and other places of worship, political rallies, demonstrations, and other speech protected by the First Amendment.
- Note that, while an outdoor wedding or wedding at a church would not be restricted under this order, 1) the Department of Health Services encourages people to remember that large weddings have been shown to foster the spread of COVID; and 2) More restrictive local orders may still apply.
- Tribal nations are exempt for these restrictions for activities occurring on tribal land.
Navigating multiple, and sometimes conflicting, orders from nation, state and local levels of government can be confusing and contradictory. If any of these orders has left you with concerns about your business’ obligations to customers and employees, the attorneys at Kramer, Elkins, & Watt, LLC can help!
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