Uncovering the Requirements of Governor Walz’s Face Mask Order

Governor Walz has issued Executive Order 20-81 (the “Order”) requiring Minnesotans to wear a mask or face covering in most indoor settings (and some outdoor settings as well) starting on 11:59 p.m. Friday evening.

Consequently, Minnesota businesses must update their COVID-19 Preparedness Plans to include face covering requirements. They must also inform their workforces how the plan was updated, and make the revised plan available to their workers. Finally, businesses “must post one or more signs that are visible to all persons – including workers, customers, and visitors – instructing them to wear face coverings as required by [the Order].”

When Masks are Required

The Order provides a variety circumstances where masks are mandatory; including but not limited to:

• Indoor businesses or public indoor spaces, including when waiting outdoors to enter an indoor business or public indoor space;
• Businesses, venues, or public spaces which have opted to require a face covering when it would not otherwise be required by the Order;
• Workers who are working outside when social distancing cannot be maintained; and
• Other specific industries when specified on the Stay Safe Minnesota website.

The Order also identifies situations where individuals can remove their face coverings temporarily, including:

• When testifying, speaking, or performing in an indoor business or public indoor space, in situations or settings such as theaters, news conferences, legal proceedings, governmental meetings, presentations, or lectures if social distancing can be maintained. However, the Order recommends using face shields as a facemask alternative.
• Eating or drinking in an indoor business or indoor public space if social distancing can be maintained.
• When communicating with someone who is deaf or hearing impaired, or has a disability, medical condition, or mental health condition that makes it difficult to communicate with a face covering as long as social distancing is maintained.
• When receiving a service, such as a dental examination or procedure, medical examination or procedure, or personal care service, that cannot be performed (or would be difficult to perform) with an individual wearing a face covering. Any worker who interacts with the individual who temporarily removes their face covering must still comply with the face-covering requirement in the industry guidance published on the Stay Safe Minnesota website.
• When the individual is alone in an office, room, a cubicle (if the walls are higher than face level when social distancing is maintained), a vehicle, a heavy equipment cab, or an enclosed work area. The individual should carry a face covering in the event of any person-to-person interactions or if the individual is no longer alone.

Exemptions to the Requirement

The Order also sets forth a variety of situations where face coverings are “strongly encouraged” such as riding in vehicles with people who do not reside in the same home,  indoor and outdoor social activities and “in any outdoor business or public outdoor space when it is not possible to consistently maintain social distancing, such as when entering or exiting a business, being seated, moving around in a space with others present, using the restroom, ordering food, or waiting in line.”

The Order exempts certain individuals with a medical condition, a mental health condition, or a disability “that makes it unreasonable for the individual to maintain a face covering.” It is “unreasonable to maintain a face covering” when someone has medical condition or disability “that compromises their ability to breathe” and “individuals who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance.” The Order continues by stating that those who are unable to wear a face covering should consider using alternatives, including a face shield, social distancing, and/or staying home. The Order also exempts children under the age of five or individuals at the workplace “when wearing a face covering would create a job hazard for the individual or others.”

Implementing and Enforcing the Order

The Order continues with a brief summary of how to implement the new face-covering mandate. It states:

• Require everyone (workers, customers, visitors, vendors, etc.) to wear masks.
• Provide accommodations to persons (both workers and customers) who state that they are exempt from the requirements mentioned above. Accommodations may include offering a face shield or providing options that keep the customer outside the workspace, including curbside pickup or delivery.
• Business cannot demand proof of a medical condition or disability, or ask the customer to explain the nature of their conditions or disability.
• Businesses must still follow all of requirements to whether a worker must provide documentation of a medical condition that supports their inability to wear a face covering.
• The Order also mentions that it does not require businesses or their workers to “enforce the face covering requirement when it is unsafe to do so,” nor does it authorize businesses to restrain, assault, or physically remove workers or customers who refuse to comply.
• Lastly, the Order does not allow businesses or their workers to violate other laws, including anti-discrimination laws (such as the Americans with Disabilities Act or the Minnesota Human Rights Act).

It bears repeating – businesses may not ask customers to prove their medical basis for not wearing a mask but may require employees to provide such documentation. This must be done in accordance with federal and state discrimination laws that require an interactive inquiry process and reasonable accommodation.

Notwithstanding the above, businesses are free to implement more protective policies than the requirements in the Order, as long as the more restrictive policies are consistent with the law

Lastly, the Order’s guidance states that it is the responsibility of the business to maintain compliance with workers, customers, and visitors wearing face coverings. Businesses that fail to comply with the Order face serious penalties, including facing criminal charges (up to a misdemeanor, $1,000 fine, and not more than 90 days in jail), civil enforcement and fines (up to $25,000), and regulatory enforcement by the government.

The Order contains a link to helpful FAQ’s about what is required.

Bottom Line

Minnesota has now joined what appears to be an emerging majority of states with face mask requirements.  The almost immediate deadline for implementation means that you must take action now.

You may click here for a helpful collection of logos, social media content and posters/signs that businesses may use to communicate the need for masks and social distancing on their premises.