Assembly Adds Contested Provisions Back to AB 1; Senate Makes a Minor Addition and Passes the Assembly’s Updated Version

Earlier this week, the Assembly and Senate again considered Assembly Bill 1 (AB 1), a comprehensive COVID-19 response package that was introduced at the start of the session by Speaker Robin Vos (R-Rochester) and quickly passed by the Assembly along partisan lines. AB 1 was then amended by the Senate via Senate Substitute Amendment 1 (SSA 1), which passed the Senate 29-2.

AB 1 provides liability protections for Wisconsin employers, schools, non-profits, and other entities by raising the standard for liability from ordinary negligence to a reckless or wanton conduct or intentional misconduct standard for an entity to be liable for damages associated with a COVID-19 infection. Throughout the process, these protections have been part of AB 1.

SSA 1, introduced by Majority Leader Senator Devin LeMahieu (R-Oostburg), removed several provisions from AB 1 that likely would have caused Governor Tony Evers to veto the bill. As the amended AB 1 returned to the Assembly, the governor stated publicly that he would sign that version of the bill. We discussed the original Assembly bill and the Senate’s changes here.

Then on Tuesday, January 26, the Assembly took up AB 1 and offered two amendments to SSA 1. The first, Assembly Amendment 1 (AA 1), restored many of the contested policies removed by SSA 1, including reopening the state Capitol to the public, mandating in-person work for state employees, prohibiting the Department of Health Services (DHS) and local health officials from closing houses of worship or requiring individuals to receive a COVID-19 vaccine, and forbidding employers from requiring individuals to receive a COVID-19 vaccine.

Assembly Amendment 2 (AA 2) to SSA 1 gives the Legislature’s Joint Committee on Finance (JFC) the authority to passively review the governor’s expenditure of federal funds related to COVID-19. Under the amendment, when Wisconsin receives federal money related to COVID-19, the governor must submit a spending plan to JFC as soon as possible. If the committee takes no action, the governor can proceed with spending the funds as planned; otherwise, the governor may only implement the plan as approved by the committee. The amendment also makes technical changes to the administration of the Child Care and Development Block Grant funds that Wisconsin received from the federal government last month, as we discussed here.

Both amendments to SSA 1 passed 58-34 along party lines, as did AB 1 itself. The bill headed back to the Senate, which considered it again on Thursday, January 28. At that time, the Senate added its own amendment to AA 1. This amendment authorizes the governor to issue a public health emergency related to COVID-19 insofar as it is required for the state to receive or retain federal funds related to COVID-19. The amendment’s author, Senator Steve Nass (R-Whitewater) noted on the floor that if the governor’s emergency order were to be overturned, either by the Wisconsin Supreme Court or by Senate Joint Resolution 3 (discussed here), this could put certain federal funds in jeopardy. For example, federal emergency funds for the Supplemental Nutrition Assistance Program (SNAP) may be contingent on the state having an active state of emergency.

After adding this amendment to AA 1, the Senate approved both Assembly amendments on voice votes and sent the latest version of AB 1 back to the Assembly. The Assembly will review the bill at a later date. Based on comments made during floor debate in the Senate this week, Senate Democrats anticipated Gov. Evers will veto AB 1 as it is stands currently.

Assembly Approves Two Vaccine-Related Bills

During a floor session on Thursday, January 28, the Assembly considered two bills related to vaccine distribution, both introduced by Representative Joe Sanfelippo (R-New Berlin). The first, Assembly Bill 4 (AB 4) would authorize pharmacy technicians and pharmacy students to administer vaccines and certain other drugs by injection, after completing a training course. After passing an amendment making minor technical changes to the language of the bill, the Assembly passed AB 4 90-1.

The Assembly also considered Assembly Bill 5 (AB 5), which contains several provisions related to the distribution of the COVID-19 vaccine in Wisconsin. It would require DHS to prioritize vaccinations for individuals age 60 and older, create a centralized platform for the public to get information about the COVID-19 vaccine and schedule vaccination appointments, review new vaccinator applications within 10 days, and submit a to the Legislature by February 28 a plan for vaccinating the general public.

AB 5 would also require DHS to allow vaccinators to move on to vaccinating individuals on the next priority level, as recommended by either DHS or the federal advisory committee, if the vaccinator determines that demand from the current priority group has been satisfied. Following individuals age 60 and older, the bill would prioritize “frontline essential workers” who are not healthcare workers; this group includes most workers that were already approved by DHS for Phase 1B (read more here) but would also include manufacturing workers, which DHS did not.

AB 5 was passed by the Assembly 57-36 along party lines. Both bills now head to the Senate for its consideration.

Senate Considers Standalone Items They Removed from AB 1

Last week, on Thursday, January 21, the Senate Committee on Human Services, Children and Families held a hearing and executive session and passed a series of bills related to COVID-19. Four of the bills contained policy items that were in AB 1 as originally introduced, but were later removed by the Senate in SSA 1. However, all of these policies were added back to the bill by the Assembly the following Tuesday as part of AA 1 to SSA 1. The committee also passed a bill (SB 8) that would prohibit DHS from prioritizing prisoners for COVID-19 vaccination before they would otherwise be eligible, or within an allocation phase. The future of all of these bills is unclear, but at this point they seem unlikely to pass.