On February 25, 2021, Wisconsin enacted a new law designed to help reduce ambiguity regarding COVID-19-related liability.  The statute (Wis. Stat. § 895.476), which became effective on February 27, 2021, gives certain entities broad immunity from civil liability related to COVID-19 unless they acted recklessly or engaged in wanton conduct or intentional misconduct.  The immunity applies to lawsuits filed after February 27, 2021, asserting claims that accrued on or after March 1, 2020.  The immunity is in addition to any other applicable immunities that may be provided by law.

Entities covered by the statute include partnerships, corporations, associations, governmental entities, tribal governments, tribal entities, or other legal entities.  Covered entities also include schools, institutions of higher education, nonprofit organizations, and any employers covered by the state unemployment insurance laws.  Employers, business owners, employees, agents, or independent contractors of the entities are also covered, regardless of whether the person is paid or is an unpaid volunteer.  Importantly, the immunity applies not only to employers with respect to workplace incidents of COVID-19, but also in many other contexts, including, for example, COVID-19-related lawsuits against long-term care providers (e.g., by their patients and/or patients’ families), retail establishments (e.g., by their customers), and universities (e.g., by their students).

Under the statute, covered entities are immune from civil liability for the death of (or injury to) any individual (or other damages) caused by an act or omission related to novel coronavirus exposure (i.e., exposure to SARS-CoV-2 or COVID-19 in the course of, or through the performance or provision of, the entity’s functions or services).  The immunity does not apply, however, if the challenged act or omission by the entity involves reckless or wanton conduct or intentional misconduct.

Of note, the statute does not define what constitutes an act or omission that involves reckless or wanton conduct or intentional misconduct.  As a result, in future lawsuits seeking to hold entities liable for COVID-19-related deaths, injuries, and/or other damages, Wisconsin courts will need to determine what constitutes reckless or wanton conduct and intentional misconduct in the context of COVID-19.  While Wisconsin courts have generally held in other contexts that such conduct involves more than simple negligence (and likely requires proof of a certain degree of intentional disregard for the foreseeable consequences of unreasonably dangerous activities), a number of unanswered questions remain that will need to be clarified by Wisconsin courts. 

These questions include not only the definitions of reckless or wanton conduct and intentional misconduct, but also, for example, questions related to the statute’s requirement that the exposure be in the course of, or through the performance or provision of, the entity’s functions or services.  How will such exposure be demonstrated and which party will bear the burden of proof on this issue?  Despite these questions, however, Wisconsin’s new statute should provide many defendants with significant protection from liability when faced with COVID-19-related lawsuits.