Governor Evers Issues Statewide Face Covering Mandate; Legal Challenges Expected

Today, Wisconsin Governor Tony Evers issued a statewide face covering mandate in conjunction with the declaration of a new public health emergency as it relates to the ongoing COVID-19 pandemic. The mandate is set to go into effect Saturday, August 1, and remain in effect through Monday, September 28, unless extended.

The statewide mandate orders all persons ages five and older to wear a face covering in all indoor or enclosed spaces (other than private residences) where an individual who is not a member of the person’s household is also present. “Face covering” is defined as a piece of cloth or other material worn to cover the nose and mouth completely and includes but is not limited to a bandana, a cloth face mask, a disposable or paper mask, a neck gaiter, or a religious face covering. It does not include face shields, mesh masks, masks with holes or openings, or masks with vents.

Additional guidance clarifies that, under the new mandate, face coverings are required inside all office spaces and other businesses across the state, unless an employee is the only person in the room (e.g., in the case of someone working in an individual office). Employers are not obligated to provide face coverings to their employees or customers, but are encouraged to do so.

Exceptions to the face covering requirement include circumstances in which people are:

• Eating or drinking;
• Communicating with an individual who is deaf or hard of hearing and communication cannot be achieved through other means;
• Obtaining a service that requires the temporary removal of a face covering (e.g., dental services);
• Sleeping;
• Swimming or on duty as a lifeguard;
• Actively speaking while giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience (and maintaining a six-foot distance from others); or
• Engaging in work where wearing a face covering would create a safety risk to the person, as determined by government safety guidelines or regulations.

Additionally, face coverings are not required when removal is necessary to confirm a person’s identity (e.g., when entering a bank or other financial institution), or where federal or state law prohibits wearing a face covering.

In addition, several people are exempt from wearing face coverings as required by this mandate, including:

• Children under the age two, and children between the ages of two and five where physical distancing is not possible;
• People who have trouble breathing;
• People who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance;
• People with medical conditions, intellectual or developmental disabilities, mental health conditions, or other sensory sensitivities that prevent them from wearing a face covering; and
• People who are incarcerated.

Violations of the statewide mask mandate may result in fines up to $200. It is not clear what if any obligation employers have to enforce the order, or what penalties may befall employers that fail to do so. A frequently asked questions (FAQ) document is available here and further guidance is anticipated.

Republican lawmakers have already requested an immediate call of the Legislature into session to pass a joint resolution invalidating the mandate and emergency declaration. There may also be a legal challenge to the mandate in the courts, although the makeup of the Wisconsin Supreme Court has changed since it upheld a challenge to Governor Evers’ “safer at home” order with the election of Jill Karofsky who unseated Justice Daniel Kelly.

We will provide further updates from the Governor’s Office on interpretation of the mandate and on any legal challenges of it. If you have any questions about the mandate or how it impacts your business or related employment issues, please contact your local Quarles & Brady attorney or:

• Sean Scullen: (414) 277-5421 / sean.scullen@quarles.com
• Tyler Roth: (414) 277-5765 / tyler.roth@quarles.com
• Brenna Wildt: (414) 277-5328 / brenna.wildt@quarles.com