Wisconsin Turns the Dial: More Retail Stores May Now Open

May 12, 2020 | COVID | Current Events


Wisconsin Turns the Dial: More Retail Stores May Now Open

On May 11, 2020, the Department of Health Services, at the direction of Governor Evers, issued a new Emergency Order #36, modifying Safer at Home Order #28. For more details on the Safer at Home Order, see our blog post Safer at Home Order Extended to May 26, 2020. Order #36 is a “turn of the dial” effective immediately – one more step toward slowly reopening the state as laid out in Evers’ Badger Bounce Back Plan.  For more on that Plan, see our blog post Governor Announces Plan for Reopening Wisconsin.

Under Safer at Home, before the changes made by Order #36, people:

  • Could not visit or operate retail stores in-person.
  • Could not visit or operate drive-in movie theaters.

Under the new Order #36, people:

  • Can visit and operate standalone or strip mall-based retail stores within the guidelines set by the order.
  • Can visit and operate drive-in movie theaters within the guidelines set by the order.
  • Must still abide by all other requirements of Order #28.

In-Person Retail Stores

Order #36 allows retail stores to allow in-person visits on a limited basis. For retail stores that were not previously allowed to open by Order #26:

  • Stores may only open if they have standalone entrances outside that are not connected through a mall. Stores must close to the public any passages that allow customers to travel between stores. Further, stores that rely exclusively on mall or interconnected passage entrances may not offer in-person retail services.
  • Stores must limit the number of customers in the store at one time to five or fewer.
  • Stores must create lines outside the store to regulate entry with 6-foot-distance markers to ensure customer compliance with social distancing.
  • Stores are encouraged to use alternative line methods, such as text-message or phone call notification to customers while they wait in cars.
  • Face coverings are encouraged for all staff and customers.

This order may seem to be a big step from #28 – but be aware that in-person retail stores still must comply with sections 2.b.ii.2., 2.b.ii.3., and 2.b.ii.4. of Order #28. Those are, respectively:

  • Stores must restrict the number of workers to no more than is strictly necessary to operate.
  • Stores must increase standard cleaning and disinfection to limit worker and patron exposure. This includes having a procedure to clean and disinfect if there is a positive COVID-19 case in the workplace.
  • Stores must adopt policies to prevent workers from entering the workplace who have respiratory symptoms or have had contact with a person with a confirmed diagnosis.

Places of Public Amusement and Activity

Order #36 also expands the exceptions of businesses allowed to operate under the Safer at Home Order to include drive-in movie theaters. Drive-in theaters may open and operate with the following restrictions:

  • Do not offer outdoor seating.
  • Allow customers to leave their cars only to purchase or pick up concessions or to use the restroom. Require that patrons stay in their vehicles at all other times.
  • Sell concessions in compliance with section 13.d. and 13.e. of Order #28, meaning:
    • The restrictions under 13.d., applicable to Restaurants, that also apply to drive-in theaters are:
      • Restaurants may remain open for food take-out or delivery service only. (While Order #36 does not elaborate, presumably concessions at a drive-in movie theater are considered “take out”.)
      • Alcohol sales must comply with section 13.e.
      • Customers may enter the above establishments only for the purpose of ordering, pick up, and paying for food or beverage or both.
      • No seating may be provided.
      • Food and drink may not be consumed on premises, either indoors or outdoors. (While Order #36 does not explain this apparent conflict, presumably consuming food and drink in one’s vehicle is not considered “on premises.”)
      • Establishments shall meet Social Distancing Requirements between all individuals on the premises to the extent possible.
      • Cease any self-service operations of salad bars, beverage stations, and buffets.
      • Customers are prohibited from self-dispensing unpackaged food or beverage.
    • Under 13.e., applicable to Bars, which now also applies to drive-in movie theaters, carryout sales of alcohol beverages and food are allowed, if permitted by state law and municipal ordinance.
  • Drive-in theaters may deliver food to patrons waiting in their vehicles.
  • To the extent possible, patrons should make reservations and payments should be made in advance online or over the phone.

Safe Business Practices

The order reaffirms that business should continue to use technology to avoid meeting in person. This includes virtual meetings, teleconference, and remote work. Businesses should also continue to avoid door-to-door solicitation. Additionally, Order #36 encourages businesses to follow the guidelines set by the Wisconsin Economic Development Corporation here: https://wedc.org/reopen-guidelines/.

This new order takes effect immediately and supersedes any local order that conflicts with it. These changes stay in effect for the remainder of Safer at Home order, until 8:00 a.m. on May 26, 2020.

If you have questions about the rights and obligations of your business under the Safer at Home Order or any modifications to it, contact Kramer, Elkins & Watt, LLC. Stay tuned to KEW Tips for updates as they occur. In the meantime, stay safe!