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On July 30, 2020, Wisconsin joined 31 other states—including Alabama, California, and Pennsylvania—with a statewide face covering order. Governor Tony Evers issued Emergency Order #1, requiring all individuals in Wisconsin over the age of five and medically able to do so to don cloth face coverings (not including face shields or mesh coverings) any time they are “indoors or in an enclosed space, other than a private residence,” and in the presence of others outside their households. The governor’s office also released a set of frequently asked questions, addressing issues such as who is tasked with enforcing the order (state and local officials) and whether the order applies to businesses and office spaces specifically (yes, unless an exception applies). The order will take effect on August 1, 2020, and expire on September 28, 2020, absent a subsequent superseding emergency order.

The order is broadly applicable to almost every business environment. It defines “enclosed space” as “a confined space open to the public where individuals congregate, including but not limited to outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures.” However, it does not limit or even define the term “indoors” and does not include a social distancing exception for six feet of space between individuals. Unless an individual is alone in an office or an enclosed workstation, he or she must wear a face covering at all times, with certain exceptions.

In accordance with the U.S. Centers for Disease Control and Prevention’s guidelines, the order exempts certain individuals from the face covering requirement, such as children under five years old, people with physical or mental health conditions that prevent them from wearing face coverings, and individuals who have trouble breathing. Further, individuals in specific circumstances may remove their face coverings, such as when:

  • obtaining a service, such as a dental exam, requiring the temporary removal of the face covering;
  • eating or drinking;
  • “communicating with an individual who is deaf or hard of hearing and communication cannot be achieved through other means”;
  • sleeping;
  • swimming or performing duty as a lifeguard;
  • “giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience”;
  • “engaging in work where wearing a face covering would create a risk to the individual, as determined by government safety guidelines”;
  • confirming identity, such as upon entering a bank, credit union, or other financial institution; or
  • when federal or state law or regulations prohibit wearing face coverings.

Individuals who violate the order may be subject to civil fines not to exceed $200.

It remains to be seen whether the order will be challenged in state court, although given the Wisconsin Supreme Court’s decision earlier this year that invalidated the Wisconsin Safer at Home Order, such a challenge is likely. At least one state legislator has called for a legislative session to block the order. However, even if the order is invalidated, some localities, such as the City of Milwaukee and Madison/Dane County, have face-covering mandates in place.

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 programs.

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