On July 30, 2020, Governor Evers signed Emergency Order #1 (the “Order”). The Order is effective August 1, 2020 and expires September 28, 2020, unless superseded by a subsequent emergency order.
The Order requires every individual in Wisconsin over the age of five to wear a face covering (e.g. bandana, cloth face mask, neck gaiter) when the individual is indoors or in an “enclosed space,” and another person who is not a member of the individual’s household is present in the same room or enclosed space. The Order defines “enclosed space” as “a confined space open to the public where individuals congregate” (e.g. outdoor bars/restaurants, taxis, public transit, ride-share vehicles, outdoor park structures).
While the Order does not require individuals to wear a face covering when outside (unless in an enclosed space) or in a private residence, it strongly recommends that individuals wear a face covering in all other settings, including outside, when social distancing is not possible. It also encourages children aged 2-5 to wear a face covering when physical distancing is not possible.
An individual failing to comply with the Order is subject to a civil forfeiture of not more than $200.
The Order includes several occasions when face-coverings may be temporarily removed. These occasions include when individuals are eating/drinking, communicating with one who is deaf or hard of hearing, obtaining a service that requires the temporary removal of the face covering (e.g. dental services), sleeping, swimming or on duty as a lifeguard, giving a presentation to an audience (e.g. religious, political, media, educational, artistic, cultural, musical, theatrical), or engaging in work where wearing a face covering would create a risk to the individual, as determined by government safety guidelines. Individuals may also temporarily remove their face covering when necessary to confirm the individual’s identity (e.g. entering a bank) or when federal or state law or regulations prohibit wearing a face covering.
The Order exempts the following from its face-covering requirement: (1) individuals who have trouble breathing; (2) individuals unable to remove the face covering without assistance; (3) individuals with medical conditions, intellectual or developmental disabilities, mental health conditions, or other sensory sensitivities that prevent them from wearing a face covering; and (4) incarcerated individuals.
As to face coverings themselves, the Order discourages individuals from wearing N95 masks and other medical-grade supplies, to conserve their limited supply.
Several aspects of the Order and its enforcement are unclear or are worth noting. First, the Order is silent on the evidence, if any, required for an individual to prove that he or she is exempt from the Order’s requirements or has temporarily removed a face covering for a purpose approved under the Order.
Second, the Order is addressed to individuals; whereas the City of Milwaukee Order is directed to businesses. Presumably, enforcement of the Order would be directed toward each individual; whereas enforcement of the City of Milwaukee Order is directed towards businesses where the non-complying people are located.
Third, it is unclear how the civil forfeiture will be calculated (e.g. per occurrence, per day, etc.).
Fourth, it is unclear which agency (e.g. local police, county sheriff, state agency) is charged with the Order’s enforcement, and the extent to which the Order will, as a practical matter, be enforced. For example, on the same day the Order was issued, the Washington County Sheriff’s Department posted on its Facebook page that, while it cannot speak for other municipal police agencies, the Washington County Sheriff will not enforce the Order. These or other disputes could lead to litigation regarding the Order.
As with other COVID-19 related issues, the Order’s precise scope will be defined as it is implemented and enforced, and as legal challenges, if any, arise. Reach out to your FOS attorney with any questions or concerns you may have about the Order or other COVID-19 related legal issues.
Be well.
Postscript:
Governor Evers’ office has published some FAQs that provide the following relevant information:
- You are not required to carry documentation to prove that you do not need to wear a face covering in public.
- Face coverings are required inside businesses and office spaces, unless an exception applies.
- Enforcement – “Local and state officials may enforce the order.” (emphasis added).
- What do I do if someone is not wearing a mask, even though they should be? “Nothing. Some people have conditions or circumstances that would make wearing a cloth face covering difficult or dangerous. Just wear your mask and stay six feet away.” (emphasis added).
