Governor Evers Order Masks Statewide Beginning at Midnight Tonight

July 31, 2020 | COVID | Current Events

Citing a rise in COVID cases across Wisconsin, Governor Evers issued two new orders on July 30, 2020. First, he issued Executive Order #82, declaring Wisconsin to be in a state of public health emergency for the next 60 days (the maximum period allowed by state law). State law authorizes Govern Evers to issue “such orders as he deems necessary for the security of persons and property” during a public health emergency.  One provision of the Governor’s declaration authorizes the commander of the Wisconsin National Guard to activate the Guard as necessary to provide personnel and support for the August 11 primary election and to operate community testing sites through the state.

Pursuant to his authority under the Executive Order, Governor Evers also issued Emergency Order #1 which goes into effect on Saturday, August 1, at 12:01 a.m. It bears mention that this Order is issued under a different statutory framework and authority than what Secretary of the Department of Health Services Secretary Andrea Palm relied upon for the Safer-At-Home order, which was struck down by the Wisconsin Supreme Court as an administrative rule that needed to go through a rule-making procedure. As such, Governor Evers’ Emergency Order is not explicitly proscribed by the Supreme Court’s decision this past May.

As a backdrop to reviewing this new order, note that Dane County has had a mask requirement in place for several weeks (along with a few other local orders throughout the state). For those familiar with Dane County’s requirement (we outlined them here), the terms in the statewide Order that were not included in the county order are bolded and explained within, if explanation is warranted. Note that counties and municipalities are allowed to have orders that are more restrictive than the state Order, and the state Order does not automatically supersede local orders already in place.

The new Order requires all individuals over the age of 5 (not including exceptions discussed below) to wear a face covering, defined as a cloth materials that covers the mouth and nose completely, including bandanas and religious face coverings (the Dane County Order just says “face covering”), while in any indoor or enclosed space, other than a private residence, in which another person not of the individual’s household is present (the Dane County Order requires masks in indoor places where other could be present, and does not specifically except private residences).  The new Order excludes face shields, mesh masks, and masks with holes, openings, or vents from the definition of allowable face coverings. “Enclosed spaces” are places open to the public where individuals congregate and include outdoor bars and restaurants, taxis and ride-share vehicles, public transit, and outdoor park structures, as well as any indoor structure (the Dane County Order requires masks while in line to enter indoor spaces).

The order sets forth a number of enumerated exceptions to the mask wearing requirement, which are further explained in FAQs provided by Governor Evers’ office, including:

  • Individuals may remove a mask:
    • While actively eating or drinking. If an individual is at a restaurant, they should wear their mask whenever they are not eating or drinking, for example, while interacting with restaurant staff, waiting for their food to arrive, or if they get up to use the restroom, but may remove their mask while eating.
    • When communicating with an individual who is deaf or hard of hearing if communication cannot be achieved through other means.
    • While obtaining services, such as dental cleaning, that require temporary removal of face coverings.
    • While sleeping, swimming, or on duty as a lifeguard
    • At a “religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience”, a single speaker at a time may remove their mask when actively speaking if all others in attendance are 6 feet away from the speaker.
    • When engaging in work where wearing a face covering would create a risk to the individual, as determined by government guidelines
    • When necessary to confirm an individual’s identity or when state or federal laws/regulations prohibit wearing a mask.
  • Individuals are exempt from the mask requirement, in accordance with CDC Guidance, if they:
    • Have trouble breathing.
    • Are unconscious, incapacitated, or otherwise unable to remove the face covering without assistance.
    • Have medical conditions, intellectual or developmental disabilities, mental health conditions, or other sensory sensitivities that prevent mask-wearing.
    • Are incarcerated, unless Wisconsin DOC, or local county jail, policy states otherwise.
  • State facilities or offices under the control of the Wisconsin State Legislature or Wisconsin Supreme Court are exempt from this order, but both may establish mask guidelines consistent with their needs.

Individuals may be fined $200 per violation until the order expires on September 28, 2020. However, the State Legislature can terminate a state of emergency at any time by passing a joint resolution. The Order encourages individuals to refrain from using N95 masks to prevent shortages for healthcare professionals. The order also reminds the public to maintain physical distancing. Finally, the order notes that the CDC recommends that children under age 2 refrain from wearing masks.

As always, if you wish to discuss the obligations of your business under the latest Order, or any state or local orders put in place during the COVID-19 pandemic, feel free to contact Kramer, Elkins & Watt, LLC at 608-709-7115 or email us at info@kewlaw.com.