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Mask mandate ping pong: What it means for Wisconsin employers

February 16, 2021

Is a mask mandate in place for the state of Wisconsin?

Yes. On Feb. 4, 2021, Wisconsin Governor Tony Evers’ re-declared a public health emergency through Executive Order #105, Relating to Declaring a State of Emergency and Public Health Emergency (Executive Order #105) and Emergency Order #1, Relating to Stopping the Spread of COVID-19 by Requiring Face Coverings (Emergency Order #1) regarding face coverings in certain situations for people over the age of five. Under Emergency Order #1, face coverings are required to be worn whenever anyone is indoors or in an enclosed space (other than a private residence) and other people are present in the same room or space, with limited exceptions. ​The order is in place until March 20, 2021.

Why were there reports that the mandate was repealed?

Under Wisconsin law, a governor may declare a state of emergency when there is a disaster or the imminent threat of a disaster. However, states of emergency must be limited to 60 days unless the Legislature extends the order by joint resolution. The Legislature also can revoke a governor’s declaration of a state of emergency through a joint resolution (that is not subject to a veto).

On Feb. 4, 2021, the Wisconsin Legislature did vote to end Governor Evers’ prior mask mandate that was put into effect in November 2020. In response to the Legislature’s actions, Governor Evers issued the new Executive Order #105 and Emergency Order #1 on Feb. 4, 2021.

What happens next?

A lawsuit is already pending before the Wisconsin Supreme Court challenging Governor Evers’ actions. A new lawsuit was filed on Feb. 9, 2021, challenging the latest mask mandate. As of the date of this writing, the Wisconsin Supreme Court had not ruled on the lawsuits affecting the mask mandates.

Federal and local laws may still apply

State law is not the only game in town: federal regulations and local laws may still apply. Regardless of the political back and forth in state politics, employers should keep in mind that the Occupational Safety & Health Administration (OSHA), Centers for Disease Control (CDC) and various local orders continue to recommend or require masking up:

  • OSHA: On Jan. 29, 2021, OSHA released new guidance on how employers should mitigate and prevent the spread of the 2019 novel coronavirus (COVID-19) in the workplace. OSHA’s new guidance notably includes a recommendation that employers provide and require employees and other guests and visitors to the workplace to wear masks, except where a reasonable accommodation due to disability may be required. While the guidance is technically non-binding, failure to adhere to OSHA’s recommended best practices could still be used by OSHA to demonstrate employer violations of the Occupational Safety and Health Act’s general duty clause.

Furthermore, in accordance with President Joe Biden’s Executive Order (EO) 13999 on Protecting Worker Health and Safety, dated Jan. 21, 2021, on or before March 15, 2021, OSHA is expected to issue a new Emergency Temporary Standard on COVID-19, which may include an employer mandate requiring that face masks be worn in the workplace.

  • CDC: Effective Feb. 2, 2021, all individuals over the age of two are required to wear masks on planes, buses, trains and other forms of public transportation traveling into, within or out of the U.S., and in airports and train stations. On Feb. 10, 2021, the CDC also issued updated guidance recommending “that people wear masks in public settings, at events and gatherings, and anywhere they will be around other people.
  • Local orders: Wisconsin municipalities and counties, like Milwaukee, Madison and Dane County have passed ordinances requiring individuals over certain ages to wear face coverings in public places, with limited exceptions.

Multi-state employers have more rules to follow

Multi-state employers should also note most states have a mask mandate in place and some state laws require employers to provide employees with masks. Employers should touch base with their legal counsel to ensure they are complying with applicable laws.

More information coming soon

Stay tuned for companion information with more information regarding updating workplace safety plans, mask requirements and accommodation requests relating to mask wearing in the workplace.

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