Governor Tony Evers issued an Emergency Order yesterday, July 30, 2020, requiring that every individual five years of age and older wear a face covering if they are indoors or in an enclosed space, and “[a]nother person or persons who are not members of individual’s household or living unit are present in the same room or enclosed space.” Emergency Order #1 (EMO 1).

The Order was issued pursuant to a companion Executive Order, declaring a public health emergency concerning the spread of COVID-19. Executive Order # 82 (EO #82). The Executive Order identifies a series of factors and developments supporting the Governor’s decision to declare a public health emergency.

The press release announcing the Governor’s Orders also provided a FAQ document that answers basic questions about face coverings and issues that may arise under the Orders.

Both Orders are effective at 12:01 a.m. on Saturday, August 1, 2020 and expire on September 28, 2020, unless a subsequent, superseding Order is issued.

Content of the Governor’s Orders

Governor Evers noted “despite the hard work Wisconsinites have done to slow the spread of COVID-19, data shows a new and concerning spike in infections.” The Governor added that “Wisconsinites successfully ‘bent the curve’ in May, but a drastic new spike has occurred due to the unprecedented number of new confirmed COVID-19 cases, including 43 percent of all Wisconsin COVID-19 cases occurring since July 1.”

The Governor cited the following data:

WHEREAS, on June 1, 2020, there were 18,543 confirmed cases of COVID-19 in Wisconsin; on July 1, 2020, there were 29,199 confirmed cases of COVID-19, a 57 percent increase from June 1; and on July 29, 2020, there were 51,049 confirmed cases of COVID-19, a 75 percent increase from July 1.

Governor Evers presented several bodies of data to demonstrate that the state’s “high virus activity levels,” spikes in the number of COVID-19 cases, and Wisconsin’s increased death rate warranted declaring a public health emergency. The Governor cautioned that the reopening of public schools may be in jeopardy, adding that “without quick intervention,” COVID-19 would “(result in) unnecessary serious illness or death, overwhelm our healthcare system, prevent schools from fully reopening, and unnecessarily undermine economic stability.” EO #82.

The Governor’s EMO #1 focused on data demonstrating that face coverings inhibit the transmission of COVID-19. The Governor cited the Center for Disease Control (CDC)’s position that “[c]loth face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus – particularly when used universally within a community setting.” The Governor added that “published scientific research has shown that the probability of transmission during exposure between a person infected with COVID-19 to an uninfected person is 17.4 percent if face coverings are not worn, and 3.1 percent if face coverings are worn.” Governor Evers concluded that “widespread use of face coverings will slow the spread of COVID-19, allowing Wisconsin’s economy to move forward by making sure businesses can stay open and jobs are available.”

On this basis, Governor Evers invoked his authority “to issue ‘such orders as he or she deems necessary for the security of persons and property’ during an emergency,” under Wis. Stat. § 323.12(4)(b).

EMO #1 includes the following, critical definitions:

1. “Enclosed space” means 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.

2. “Face covering’’ means a piece of cloth or other material that is worn to cover the nose and mouth completely. A “face covering’’ includes but is not limited to a bandana, a cloth face mask, a disposable or paper mask, a neck gaiter, or a religious face covering. A “face covering’’ does not include face shields, mesh masks, masks with holes or openings, or masks with vents.

3. “Physical distancing’’ means maintaining at least six feet of distance from other individuals who are not members of your household or living unit.

The Order makes clear that any face covering has to be solid; it cannot have a vent, mesh, or any other aperture that would make transmission of COVID-19 more likely. Consequently, any number of industrial masks would not satisfy the requirements of the Order.

The FAQ issued with the Orders states that a “face shield” cannot be worn instead of (i.e., as an alternative to) a face covering. The FAQ adds that an individual can wear a face shield in addition to a mask. However, a face shield cannot be used in place of a face covering that is required by the Order.

The FAQ acknowledges that a face shield may be worn without a mask if an individual is engaged in work where a face covering might be dangerous to that individual according to government safety guidelines, or in circumstances where state or federal law prohibits a face covering.

In addition, the Orders specify that an “enclosed space” can be outdoors. The definition of “enclosed space” set forth in the order is a confined space that is open to the public and can include outdoor bars, restaurants, and park structures. The FAQ adds that individuals do not need to wear a face covering, however, if they are at a private residence, are outside, or are indoors and no one else is present.

The Order goes on to say that every individual five years of age or older must wear a face covering if “[t]he individual is indoors or in an enclosed space, other than at a private residence,” and if “[a]nother person or persons who are not members of individual’s household or living unit are present in the same room or enclosed space.” The Order also recommends face coverings in other settings.

The Order does establish exceptions to this rule. Individuals that would otherwise have to wear a face covering are permitted to remove their face covering in the following circumstances:

1. While eating or drinking.

2. When communicating with an individual who is deaf or hard of hearing and communication cannot be achieved through other means.

3. While obtaining a service that requires the temporary removal of the face covering, such as dental services.

4. While sleeping.

5. While swimming or on duty as a lifeguard.

6. While a single individual is giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience, the single speaker may remove the face covering when actively speaking. While the face covering is removed, the speaker must remain at least 6 feet away from all other individuals at all times.

7. When engaging in work where wearing a face covering would create a risk to the individual, as determined by government safety guidelines.

8. When necessary to confirm the individual’s identity, including when entering a bank, credit union, or other financial institution.

9. When federal or state law or regulations prohibit wearing a face covering.

In general, the exceptions to the rule identified by the Order are concerned with security and practical considerations. Thus, face coverings can be removed to eat or drink, swim, confirm one’s identity, or secure professional services where a face covering cannot be worn, such as dental services.

EMO #1 also provides for the following, specific exemptions:

1. Children between the ages of 2 and 5 are encouraged to wear a mask when physical distancing is not possible. The CDC does not recommend masks for children under the age of 2.

2. Individuals who have trouble breathing.

3. Individuals who are unconscious, incapacitated, or otherwise unable to remove the face covering without assistance.

4. Individuals with medical conditions, intellectual or developmental disabilities, mental health conditions, or other sensory sensitivities that prevent the individual from wearing a face covering.

5. Incarcerated individuals. The Wisconsin Department of Corrections shall continue to comply with COVID-19 protocols to ensure the health and safety of its staff and individuals in its care. Local governments are strongly encouraged to continue or create COVID-19 protocols to ensure the health and safety of their staff and individuals in their care.

Therefore, in general, the Order exempts children between the ages of 2 and 5 (although they are also encouraged to wear a mask if social distancing is not possible), individuals with a medical need to refrain from wearing a face covering, and incarcerated individuals.

The Order is enforceable by civil forfeiture of not more than $200. Wis. Stat. § 323.28. The FAQ adds that “[l]ocal and state officials may enforce the order.”

Takeaways From the Governor’s Orders

Governor Evers’ Executive and Emergency Orders raise any number of issues of interest.

From a legal standpoint, the Governor’s Orders appear to be crafted to avoid possible collision with the Wisconsin Supreme Court’s previous decision striking down Secretary-Designee’s Palm’s Emergency Order. Wisconsin Legislature v. Andrea Palm, Secretary-Designee, DHS, 2020AP765 (May 13, 2020).

In that case, the Supreme Court questioned the Secretary-Designee’s authority to impose criminal sanctions without approval by the legislature. The Secretary-Designee’s Emergency Order #28 had included up to 30 days imprisonment and up to a $250 fine for violations of its restrictions on travel, “safer at home” requirements, and requirement that non-essential businesses close.

In addition, the Court indicated that the Secretary-Designee did not have the authority as an appointed official to impose her Order without following the legislative rulemaking process. However, while in the process of discussing this issue, the Court was careful to note that it was not forming an opinion concerning the authority of the Governor, because the Order at issue in the case was not a gubernatorial order.

Governor Evers issued both Orders under his own authority. In addition, the sanctions that the Order authorizes are limited to a civil forfeiture. Consequently, the Order does not attempt to provide for any criminal sanctions for violations of its terms.

The Orders also foreshadow possible executive action that will impact the opening of schools for the 2020-2021 school year. Although EO #82 makes only a passing reference to “prevent(ing) schools from fully reopening,” the reference figures prominently in the Governor’s explanation of his reasoning. As a former educator and State Superintendent of Public Instruction, this reference suggests that the Governor has his eye on the data being generated by the pandemic as it relates to reopening Wisconsin public schools.

Although the Governor was careful to express concern over whether schools could “fully” reopen—leaving some room to support other models for resuming public education this fall—this aspect of the Governor’s Orders will be watched closely by public education officials at the State and local level.

Public schools and, it appears, private employers retain the discretion to implement more demanding requirements for PPE or other means of inhibiting transmission of COVID-19 under the Orders. Public schools have separate legal powers and duties related to protecting the health and welfare of employees and students. In addition, public schools also have the authority to implement more demanding requirements as a type of “local government” within the meaning of the Governor’s FAQ explanation for his Orders.

With respect to private business, the Orders do not purport to regulate private businesses beyond the terms of the Orders themselves. Accordingly, they do not appear to restrict or make any attempt to restrict businesses’ discretion to implement other safety measures in their facilities or with their employees if they choose to do so (subject to limits imposed by other state or federal laws, such as the ADA and FMLA).

The Orders have already generated issues concerning “documentation” that might be required for individuals that do not wear face coverings, usually for personal or medical reasons. The FAQ notes that individuals are “not required to carry documentation to prove that (they) do not need to wear a face covering in public.”

This observation has been mistaken to mean that an individual would never have to provide documentation related to COVID-19 as a matter of civil right. This is not the case; there will, for example, be circumstances where employers will have to verify information to support leave requests or where public schools need information to support parents’ requests for exemptions from the face covering Orders for their children. The comment simply means that individuals do not have to carry such documentation with them.

The FAQ included an important response to a question on what individuals should do if the town or city that they live in already has a face covering or mask order. The FAQ states without qualification that “[t]he Governor’s order sets a minimum bar. If your local government has stricter requirements, those requirements must be followed.” This represents a continuing trend in the Governor’s COVID-19 strategies, with the Governor again encouraging local officials to adopt even more demanding regulations if they believe circumstances require.

Finally, there is a clear sense of urgency underlying the Governor’s Orders. Although more concentrated outbreaks of COVID-19 have occurred elsewhere in the country, the Governor’s Orders are clearly part of a broader effort to encourage Wisconsin citizens to recommit to battling COVID-19’s transmission.

Summer activities, other significant events such as the demonstrations over the death of George Floyd, skepticism in some groups about the reliability of information circulated about COVID-19 by government authorities and health officials, public resistance in still other groups to health authorities’ recommendations, and COVID-19 fatigue are just some of the factors that have health experts concerned that citizens have become too complacent about this pandemic.

Governor Evers’ Orders put our battle against COVID-19 front and center once again.

We will continue to report on developments concerning the Governor’s Orders and, more generally, COVID-19 as events warrant.

For questions regarding this article, please contact your Renning, Lewis & Lacy attorney.

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.