A Waukesha County Court judge blocked the state from releasing employer COVID-19 data earlier this month after a joint lawsuit by three leading Wisconsin business groups.
The order prevents Gov. Tony Evers (D-WI) from releasing data on nearly 1,000 businesses with 25-plus employees who have had at least two positive COVID-19 cases or at least two contact tracing investigations among employees, according to a Wisconsin Manufacturers and Commerce press release.
The decision came the same day WMC filed a lawsuit alongside the Muskego and New Berlin Chambers of Commerce arguing the medical data is private and protected under Wisconsin Patient-Confidentiality laws. Oct. 8, Waukesha County Court Judge Lloyd Carter extended the five-day restraining order until Nov. 30.
Evers held a COVID-19 media briefing and mentioned the state’s plans to release the data to fulfill media demands. Evers said the information would not be directly accessible to the general public.
“We’re trying to obey the law,” Evers said. “We aren’t going to be putting these lists of businesses on our website. We will be releasing [the data] to the people in the media that have asked for that information in the very near future.”
WMC and the Wisconsin Restaurant Association voiced multiple concerns as to the potential impact of this data release on the reputations of already struggling businesses during the pandemic.
WMC Vice President of Communications Nick Novak said the release would include data dating back to the start of the pandemic in March and might not be representative of the current situation.
“[Evers] feels it’s important to release months-old data that would only serve to damage the reputation of businesses, potentially cause financial damage and really be something that sets a precedent that private medical information is open,” Novak said.
Evers and State Health Secretary Andrea Palm issued Emergency Order #3 on Oct. 6, restricting some indoor gatherings — including most restaurants and small businesses — to 25% capacity until early November.
These restrictions have limited restaurant revenue and are forcing owners to consider closing or face eviction as they struggle to pay rent. A recent Yelp report estimated 60% of business closures since the start of the pandemic in March were permanent.
Wisconsin Restaurant Association Executive Vice President Susan Quam said providing data could be misleading given that employee infections likely didn’t occur in the workplace, possibly changing consumer-restaurant relationships.
“Our biggest concern is that there will be confusion among consumers,” Quam said. “Consumers are going to, in many cases, just assume that if that employee is associated with that business they must’ve gotten it at their place of employment. It’s just another nail in the coffin for a lot of small businesses that are just struggling to try to pay their rent.”
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There is also debate as to whether releasing COVID-19 patient data is legally permissible. The suing groups pointed to Wisconsin Patient-Confidentiality laws in their argument while the Evers administration said freedom of information laws warrant the release.
Evers previously stated that this data was meant to be private information at the Milwaukee Press Club.
“We believe that it’s information that is not public and that it is information that we need to keep in a way that not only protects the businesses but more importantly helps us monitor and helps us answer the questions about outbreaks and how we deal with outbreaks,” Evers said. “There’s some privacy things going on there.”
Wisconsin Statute 146.82 states that while “patient health care records shall remain confidential,” access without patient consent is permitted if “the circumstances of the release do not provide information that would permit the identification of the patient.”
The possible data release would not directly mention the names of employees who tested positive for or were contact traced with COVID-19. Defense attorney Andie Bensky said in a WisBusiness article by not including names, the list is safe to release and will serve the public interest.
“There is absolutely no evidence whatsoever beyond generalized speculation that any of the member employers are going to suffer any injury at all,” Bensky said in the article. “The claim they’re making just doesn’t exist, there’s no legal hook for them to get into court.”
Quam said these employee privacy problems caused concerns among Wisconsin restaurants and despite patient names not being explicitly released, it would be easy for employees or consumers at smaller businesses to determine who the COVID-19 reports referenced.
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As COVID-19 cases surge in Wisconsin, contact tracing is also strained. Jefferson County recently experienced a spike in COVID-19 cases, which limited the local government’s ability to contact trace and control virus spread.
For Novak, fear of being identified by the government in an employer COVID-19 data release would further hurt contact tracing efforts. He said individuals would be less cooperative.
“If suddenly everyone thinks that their employer’s name is going to be put on a list somewhere if they develop COVID-19, they may be more likely to not cooperate with a contact tracer which is obviously a concern,” Novak said. “The point of contact tracing is to help us slow the spread. Releasing this type of data would do the opposite of that.”
The Washington Ozaukee Public Health Department, based in Port Washington, Wisconsin, delayed releasing similar COVID-19 lists in response to Carter’s decision.
The next hearing will occur Nov. 30 between the WMC, the Muskego and New Berlin Chambers of Commerce, Evers, Palm and Department of Administration Secretary Joel Brennan.
