Updated: COVID-19 Orders and Current Challenges

Wisconsin continues to shatter daily records for COVID-19 cases and deaths. Despite litigation challenging his ability to issue subsequent public health emergencies, this week, Gov. Evers announced he plans to extend the statewide mask mandate through mid-January. The Supreme Court will likely weigh in before then with a decision that could leave the governor will limited ability to issue more statewide restrictions.

Here is a breakdown of the latest orders and challenges:

Emergency Order #1 Relating to Reducing Hospital Bed and Staff Shortages by Requiring Face Coverings 

  • Status: In effect until January 19 or or by a subsequent superseding
    emergency order.
Executive Order #95 Relating to Declaring a State of Emergency and
Public Health Emergency 

  • Status: In effect.
Executive Order #94 Relating to Actions Every Wisconsinite Should Take to Protect their Family, Friends, and Neighbors from COVID-19

  • Status: In effect (EO #94 included precautions but no time-limited restrictions)
  • November 10, 2020. Gov. Evers issued EO #94 urging Wisconsin residents to take precautions but did not administer new restrictions.
Executive Order #90 Declaration of Public Health Emergency

  • Status: Not in effect (expired Nov. 21)
  • November 16, 2020. Wisconsin State Supreme Court held oral arguments on the case. Attorneys representing Fabick argued that the governor did not have the authority to issue the second and third public health emergencies after the first public health emergency period expired after 60 days.
    • Conservative Justice Brian Hagedorn, a key vote and who sided with the liberal judges earlier this year in the Legislature v. Palm (e.g. Safer at Home case), observed during Monday’s arguments that the 60-day statutory limit on a governor’s public health emergency is not included for local public health officials. He also stated that the statutes grant the governor extraordinary power under the 60-day public health emergency and that it seems that the legislative intent was to only grant those powers “for a short period of time.”
  • October 16, 2020. Original action filed by Jere Fabick, President of the Heartland Institute, asking the Wisconsin Supreme Court to weigh in on the governor’s authority to order multiple states of emergency that allowed him to issue the requirement for face coverings statewide.
  • September 22, 2020.  Evers issued another Executive Order declaring Public Health Emergency and Emergency Order #1 requiring face coverings statewide. (Previously, Gov. Evers declared two other public health emergencies, in March and July).


Emergency Order #1 Statewide Mask Requirement

  • Status: Not in effect (expired Nov. 21)
  • November 16, 2020. State Supreme Court hears oral arguments challenging the legality of the governor’s third public health emergency, which served as the foundation for the mask requirement (see above).
  • October 12, 2020. The Polk County judge refused to give the plaintiffs a temporary restraining order. The judge wrote that the Legislature has the power to terminate Evers’ order but has declined to do so.
  • September 22, 2020. Gov. Evers issued a third Executive Order declaring Public Health Emergency and Emergency Order #1 requiring face coverings statewide.
  • August 25, 2020. The Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit against Gov. Evers in Polk County for “violating state law by declaring a second public health emergency on July 30.”
  • July 30, 2020. Gov. Evers issued a second Executive Order declaring Public Health Emergency and Emergency Order #1 requiring face coverings statewide.


Emergency Order #2 Addressing healthcare staffing needs

  • Status: In effect for duration of federal public health emergency or until a superseding order is issued.
  • Oct. 1, 2020. Gov. Evers and DHS Secretary-designee Palm issued Emergency Order #2 to make it easier for out-of-state health workers to work in Wisconsin.


Emergency Order #3 Limiting public gatherings to no more than 25 percent of a room or building’s total occupancy

  • Status: Expired (and invalidated by state appeals court)
  • November 18, 2020. The state Supreme Court a request from Gov. Tony Evers’ administration to take over an appeal in the lawsuit and set arguments for December 14th.
  • November 7, 2020. Wisconsin Court of Appeals ruled the order as “invalid and unenforceable” on the same day the order expired.
  • October 23, 2020. Instead of appealing the case to the Appeals Court, the plaintiffs in the case are now asking the WI Supreme Court to take up the case as an original action, and consider combining it with the challenge brought by Jere Fabick regarding the declaration of another public health emergency. WI Supreme Court declined to combining the cases.
  • October 21, 2020. A different group of plaintiffs (including The Mix Up, Inc., and Pro-Life Wisconsin) filed an appeal in Wisconsin’s District 3 Court of Appeals and asked for a ruling by Friday, Oct. 23.
  • October 19, 2020. After judicial substitutions, a Barron County judge held a hearing on the case and put back in place Gov. Evers’s limits on indoor public gatherings.
  • October 14, 2020. A Sawyer County judge has issued a temporary restraining order blocking the Evers administration’s order limiting public indoor gatherings to 25 percent of a room’s capacity.
  • October 13, 2020. Tavern League filed suit against the Order.
  • October 12, 2020. Joint Committee for Review of Administrative Rules voted 6-4 (along party lines) finding the need for the Department of Health Services to submit an Emergency Rule.
    • The vote now requires the Evers administration to issue a capacity limit rule within 30-days, a step that would then allow the panel to move to suspend it without action before the full Legislature.
    • Order #3 is set to expire on Nov. 2 while the 30-day timeline for DHS to issue a rule will not expire until Nov. 11.