Legislative Update: Wisconsin Enacts COVID Liability Reform and Creates New Worker’s Compensation Claim for Public Safety Officers
Adam Jordahl, The Hamilton Consulting Group, LLC

I.              COVID Liability Protections Signed into Law

 On February 25, 2021, Wisconsin Governor Tony Evers (D) signed 2021 Wisconsin Act 4, legislation including both COVID liability protections and reforms to the state’s unemployment insurance (UI) system.[1] It cleared both houses of the Wisconsin Legislature in February with widespread support. In particular, Senate President Chris Kapenga (R-Delafield), Senate Majority Leader Devin LeMahieu (R-Oostburg), Assembly Speaker Robin Vos (R-Rochester), and Representative Mark Born (R-Beaver Dam) championed the liability protections in the Legislature.

Act 4 provides a broad civil liability exemption from COVID exposure claims for Wisconsin employers, governments, schools, and other entities as well as their employees, agents, and contractors. Now, entities cannot be held liable for ordinary negligence claims associated with a COVID infection; instead, to hold a defendant liable, the plaintiff needs to demonstrate that the infection was the result of an act or omission involving reckless or wanton conduct or intentional misconduct. The liability protections are retroactive to claims arising March 1, 2020, but not yet filed as of February 27, 2021 (the effective date of Act 4).

Act 4 is the result of a special session of the Legislature ordered by Governor Evers following his State of the State address in January.[2] Referencing the influx of unemployment claims that the state has received since March 2020, the governor claimed that an “antiquated system” and burdensome rules caused the resulting backlog of claims and long delays in processing times. The governor called on the Legislature to convene a special session to take up his proposed changes to the UI system.[3],[4] While the Legislature approved parts of the governor’s proposal, it removed a $5.3 million appropriation for the project along with several other provisions and added the COVID liability protections. 

II.            Worker’s Compensation Benefits Now Available to Public Safety Officers Diagnosed with PTSD

On April 27, 2021, Governor Evers signed 2021 Wisconsin Act 29 making various changes to Wisconsin’s worker’s compensation law, including creating a new type of claim for public safety officers diagnosed with job-related post-traumatic stress disorder (PTSD).[5] The bill originated in the Wisconsin Legislature as Senate Bill 11 and has also been referred to as the “Public Safety PTSD Coverage Act.”[6]

The bill was authored by Senator André Jacque (R-De Pere), while a companion bill (Assembly Bill 17) was introduced by Representative Cody Horlacher (R-Mukwonago). It passed the Senate unanimously on February 11, 2021 and the Assembly concurred in the bill by voice vote on April 13, 2021. A similar bill was introduced in the 2019-20 legislative session but died when the Senate adjourned due to the emergence of COVID-19.

 Act 29 provides that if a law enforcement officer or fire fighter is diagnosed with PTSD by a licensed psychiatrist or psychologist and the mental injury that resulted in that diagnosis is not accompanied by a physical injury, that person can bring a claim for worker's compensation benefits if the conditions of liability are proven by a preponderance of the evidence and the mental injury is not the result of a good-faith employment action by the person's employer. 

The law limits liability for treatment for these claims to no more than 32 weeks after the injury is first reported. A public safety officer cannot receive compensation under this type of claim more than three times total in his or her lifetime, irrespective of any changes of employer or employment. 

Under previous law, any injured employee claiming PTSD without an accompanying physical injury was required to demonstrate that a diagnosis was based on unusual stress greater than the day-to-day stress experienced by all employees.

 Act 29 also includes the following provisions: 

  • Requires a health care provider to furnish to the representative or agent of a worker's compensation insurer a complete billing statement for treatment of an injury for which an employee claims compensation upon request.
  • Provides that a client of an employee leasing company may agree to assume the worker’s compensation liability for leased employees; if a client terminates or otherwise does not provide worker’s compensation insurance for the leased employees, the leasing company remains liable for injuries to those employees.
  • Clarifies that for worker's compensation claims the statute of limitations applies to an individual's employer, the employer's insurance company, and any other named party.
  • Changes the administration of employer and insurer payments to the work injury supplemental benefit fund (WISBF) in cases of injury resulting in death and leaving no person dependent for support or leaving one or more persons partially dependent for support.

Author Biography:

Adam Jordahl is the Communications & Government Relations Manager for the Hamilton Consulting Group, a full-service government affairs firm based in Madison. On behalf of the firm and its clients, including Wisconsin Defense Counsel, he tracks legislation, rules, and news items; researches policy issues; develops communications and publications; and manages websites and social media accounts. Adam earned a B.A. in religious studies and sociology from Rice University in Houston, graduating cum laude with distinction for his senior thesis on internet memes and political messaging. 

[1] 2021 Wisconsin Act 4, available at: https://docs.legis.wisconsin.gov/2021/related/acts/4.

[2] 2021 Wisconsin State of the State Address, available at: http://www.thewheelerreport.com/wheeler_docs/files/011221everssostext.pdf.

[3] Wisconsin Executive Order #103, available at: https://content.govdelivery.com/attachments/WIGOV/2021/01/13/file_attachments/1648239/2021%20SOTS_EO103-SpecialSessionUI%20%28002%29.pdf.

[4] LRB-1312, available at: https://www.wispolitics.com/wp-content/uploads/2021/01/210113Draft.pdf.

[5] 2021 Wisconsin Act 29, available at: https://docs.legis.wisconsin.gov/2021/related/acts/29.

[6] 2021 Wisconsin Senate Bill 11, available at: https://docs.legis.wisconsin.gov/2021/proposals/sb11.