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As the mayors of Minneapolis and St. Paul did last week, Duluth’s mayor, Emily Larson, issued an indoor mask mandate, effective January 14, 2022, due to the spread of the COVID-19 Omicron variant.

City of Duluth Proclamation and Declaration of Emergency

The Duluth mask mandate states “[n]o person in control of a Space of Public Accommodation shall allow a person who is five years of age of older to enter or remain in their Space of Public Accommodation without wearing a Face Covering.” The mask mandate also states “[n]o person who is five years of age or older shall enter or remain in a Space of Public Accommodation without wearing a Face Covering.” Thus, there are obligations for both businesses and individuals to comply with this mandate.

“Space of Public Accommodation” is defined as:

… the indoor space of a business, or an educational, refreshment, entertainment, or recreation facility, or public transportation, or an institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.

The mask mandate further provides some common examples of spaces of public accommodation, including: “retail stores, rental establishments, Duluth Transit Authority buses, facilities, and bus shelters, government buildings, the Duluth Skywalk system, places of worship, and service establishments as well as educational institutions, recreational facilities, and service centers.” “Face covering” is also defined as something that complies with U.S. Centers for Disease Control and Prevention (CDC) guidelines and that: (1) covers the mouth and nose; (2) fits snugly against the sides of the face; and (3) is secured on the face.

Employers that are in control of spaces of public accommodation must also “post notice[s] of this Face Covering requirement in conspicuous locations inside and outside entrances to their Space of Public Accommodation.” The City of Duluth also provided sample signage.

The Duluth mandate provides a number of exceptions, including:

  1. Persons unable to wear a Face Covering for genuine medical reasons;
  2. Persons in a private room of a multi-tenant residence, such as an apartment building, or lodging establishment, such as a hotel, motel, or vacation rental. Face Coverings must be worn in all indoor common areas of said establishments;
  3. Business patrons in Spaces of Public Accommodation who are actively eating and/or drinking provided that all individuals wear a Face Covering when walking to or from their seat while standing in or walking through public areas such as lobbies and restrooms, and when an employee off the business is at the table serving or clearing;
  4. Business owners, managers, and employees who are in an area of a business establishment that is not open to customers, patrons, or the public, provided that six feet of distance exist between the persons
  5. Education and child care facilities with written plans in compliance with state guidelines;
  6. Fitness facilities with written plans in compliance with state guidelines;
  7. In settings where it is not feasible to wear a Face Covering, including when obtaining or rendering goods or services such as the receipt of medical or dental services, or swimming; and
  8. Police officers, fire fighters and other first responders when not practical or engaged in a public safety matter.

Violators of the Duluth mask mandate may be: issued warning letters; fined; charged with civil trespass from the space of public accommodation; prosecuted for trespass under  Duluth City Code 34-40; and subject to criminal prosecution.

The compliance period of the City of Duluth’s mandate is short (like the Minneapolis and St. Paul mask mandates), leaving little time for employers to comply. The mask mandate takes effect on January 14, 2022, at 5:00 p.m. and will terminate on February 12, 2022, at 5:00 p.m.

Given the short window of compliance, businesses may want to review the mandate and the number of exceptions to consider their applicability to their workplaces. Businesses also may want to print out and hang the required signage.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

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