Wisconsin Supreme Court Strikes Down Stay at Home Order, State Will Open Immediately While Schools Remain Closed


May 2020

On May 13, 2020, the Wisconsin Supreme Court became the first state court in the nation to overturn a “Stay At Home” regulation during the COVID-19 pandemic. With the exception of the portion of the rule that closed schools across the state, the Wisconsin Supreme Court has declared the remainder unlawful and lifted any “Stay at Home” regulations unless and until the Wisconsin legislature (in conjunction with the Governor) develops new restrictions.

The decision was a result of the legislature’s challenging Executive Order 28 on April 16, 2020. That order extended Governor Tony Evers’ initial “Stay at Home” order that was issued on March 12, 2020. Order 28 - amongst other things - extended school closures, ordered non-essential businesses to remain closed, and required continued social distancing throughout the state until May 26, 2020. Importantly, Order 28 was signed by Wisconsin’s Secretary of Health Services and not the Governor. The legislature argued to the court that the order was therefore an impermissible exertion of power by the Secretary and any extension of a “Stay at Home” order needed the legislature’s blessing. The Supreme Court agreed with the legislature and struck down Order 28 with the notable exception of school closures.

What does the decision mean for Wisconsin businesses? The civil and criminal penalties of Order 28 are declared invalid. Subject to federal COVID-19 regulations and until the Wisconsin legislature enacts new rules, there are no longer any “Stay at Home” restrictions throughout the state. Effective immediately, non-essential businesses are allowed to open without restriction so long as there is no county or municipality stay at home order in place. For example, the City of Milwaukee stay-at-home order is still in place, and will continue to be enforced by the Milwaukee police.

As a practical matter, this greatly accelerates the reopening processes for businesses. In particular, employers are free to open their doors and recall laid off employees. Employers of course should be mindful of adhering to all safety measures for their employees and customers that have been developed by the CDC and OSHA. As importantly, as schools can (and will) remain closed, employers should determine if the leave provisions of the Families First Coronavirus Response Act apply to their businesses.

If you or your business need assistance in navigating Wisconsin’s reopening, please call Patrick or Jonathan.

Please visit our COVID-19 Hub for ongoing updates.