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Governor Evers “Turns the Dial” to Begin Further Relaxing Restrictions on Businesses Categorized by the State as Non-Essential Retail

By: Sherry D. Coley and Tiffany E. Woelfel

On May 11, 2020, Governor Evers issued Emergency Order #36, which further relaxes restrictions on retail businesses categorized by the State as non-essential. The Order allows for non-essential retail businesses to open their doors to customers for in-person shopping, provided that the entrance into the store be from the outside and not from a mall or an interconnected passage.

Stores must limit the number of customers to no more than five at any given time. The language of the Order infers that businesses may have more than one employee working, but businesses are encouraged to restrict the number of staff to only what is necessary.

Additionally, social distancing requirements, such as maintaining six feet of distance, must be maintained. If social distancing requirements cannot be maintained between all customers and staff, then the store must limit the number of customers to less than five. The Order also recommends that face coverings be encouraged to be worn by all staff and customers.

Retail businesses that are categorized as essential businesses must continue to follow Emergency Order #28’s previous restrictions controlling the number of individuals allowed in a store. For stores less than 50,000 square feet of customer space, the total number of individuals allowed in the store, including employees, must be less than 25% of the total occupancy limits established by the local municipality. For stores with more than 50,000 square feet of customer space, the total number of customers, excluding employees, must not exceed more than four people per 1,000 square feet of space.

Stores are required to regulate the number of customers in the store by establishing lines outside the store for individuals to wait, including clear indications that allow six feet of separation while customers wait outside.

The Order also allows for drive-in theaters to open, provided that patrons remain in their vehicles other than to purchase food or drink from the theater or to use the restroom. No outdoor seating is allowed.

This Order is effective immediately, which means all non-essential retail businesses may open their doors to allow in-person shopping provided the business follows the restrictions within this and the previous Orders.

As retail businesses resume operations to the public or continue operations in the case of retail businesses previously classified as essential, the Governor, the Wisconsin Economic Development Corporation, and various governmental agencies have issued best practice guidance for operating. The guidance includes both General Best Practices and industry-specific guidance, including guidance for Retail Stores.

For more information about the Safer at Home Orders and what qualifies as essential business, please see our previous related articles: Wisconsin’s New Safer At Home Order Alters Restrictions on Businesses, Are You an “Essential Business” in Wisconsin Under the Safer At Home Order?, and Guidance for Business Resolving Multiple “Shelter in Place” Orders and Differing Definitions of “Essential Business.”

As always, your Davis|Kuelthau, s.c. attorneys are here to assist during this challenging time, we are all in this together. If you have any questions about this article or need further information regarding essential businesses, please contact your Davis|Kuelthau, s.c. attorney, the authors linked above, or the related practice group chair linked here.

We will continue to monitor the impact of COVID-19 and provide guidance to businesses via our Coronavirus Legal and Business Resource hub.