July 15, 2020
WMC Attorney Sends Letter to Gov. Evers & DHS Sec. Palm Outlining Legal Implications of Releasing Such Records
MADISON – Wisconsin Manufacturers & Commerce (WMC) – the combined state chamber, manufacturers’ association and safety council – sent a letter to Gov. Tony Evers and Department of Health Services (DHS) Secretary Andrea Palm on Wednesday outlining the legal implications of releasing information about businesses with employees who have tested positive for COVID-19.
The letter – sent on behalf of WMC by Ryan Walsh, an attorney with Eimer Stahl, LLP – is in response to plans by DHS to release this data either on its website or through responses to open records requests. WMC has urged the Department for nearly two weeks not to release such information. While DHS officials claimed they have “no immediate plans” to post business details on the agency’s website anymore, they have said information could be released in response to open records requests.
WMC strongly urges DHS and the Evers Administration to reconsider releasing this type of information, even in response to an open records request.
In the letter sent on Wednesday, WMC argues these disclosures would violate several state and federal laws. In part, the letter reads:
“First, Wisconsin law protects as confidential the information contained in health-care records, including the identity of patients’ employers, and therefore DHS may not publicly release that information even if doing so would, in the Department’s opinion, help to slow the spread of a virus…Second, publishing employer names would also likely violate the patient-employees’ ‘substantial privacy interest’ under the Fourteenth Amendment ‘in the confidentiality of their medical information’…Third, disclosing the names of businesses with coronavirus cases – which, in turn, would eventually uncover the identity of the patients themselves – could give rise to various tort-law claims.”
In conclusion, the letter states, “at a time when Wisconsin business owners are taking extraordinary and expensive steps to ensure the health and safety of their employees and customers, identifying the names of businesses with as few as two or more confirmed cases unfairly creates the impression that the establishments themselves are unsafe, when in fact those cases might have nothing to do with the business.”
WMC will continue to pursue this matter with DHS as it defends its members, their employees and the business community from the potential economic harm that could come from such a release.