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September 15, 2020

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Wisconsin Masks Up: Governor Evers Issues Statewide Face Covering Order

On July 30, 2020, Wisconsin joined 31 other states—including AlabamaCalifornia, 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.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 216

TRENDING LEGAL ANALYSIS


About this Author

Christine Townsend, of counsel, Milwaukee
of Counsel

Christine counsels her clients on a full range of labor and employment issues. She has frequently represented employers in litigation, successfully obtaining preliminary injunctions in matters related to restrictive covenants and trade secrets. She also regularly advises clients on the legal aspects of personnel decisions, employment policies, and employment agreements.

She began her legal career as a litigator in the Intellectual Property department of a national firm’s Chicago office. Christine continued her career in the labor and employment...

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Christina Wabiszewski, Ogletree Deakins Law Firm, Milwaukee, Labor and Employment Law Attorney
Associate

Christina is an associate attorney at Ogletree Deakins.  Prior to joining the firm, Christina served as a judicial law clerk to the Honorable Rebecca G. Bradley at the Wisconsin Supreme Court. 

While in law school, Christina worked as the lead research assistant to Dean Joseph D. Kearney.  She served as the symposium editor on Marquette Law Review.  Her comment, “Diversions from the Great Lakes: Out of the Watershed and in Contravention of the Compact,” was published in Volume 100 and received the Gold Quill Award for best student-written article.  She also was actively involved in volunteer work and was an academic success program leader, conducting review lessons in criminal and property law.  

Christina received her bachelor’s degree from Marquette University.  She also studied abroad at Philipps-Universität in Marburg, Germany. 

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