Wisconsin’s Mask Mandate: Uncovering the Latest Details

February 5, 2021

Yesterday, the Wisconsin Assembly passed Senate Joint Resolution 3 (SJR3), which formally repealed Governor Tony Ever’s COVID-19 Public Health Executive Order #104 and the statewide mask mandate. Under Wisconsin law, the Legislature may override a Governor’s public health emergency order by a joint resolution. The Governor is not required to sign the resolution and may not veto it; instead, the resolution is effective when the leaders of both houses of the Legislature sign it.

Shortly after the Legislature passed SJR3, Governor Evers declared Executive Order #105, an additional public health emergency order and statewide mask mandate, which was effective immediately. Because SJR3 did not repeal Executive Order #105, the new order is valid and Wisconsin currently has a statewide mask mandate in effect. This emergency order maintains the same mask requirements that were included in prior mandates. Additionally, county and local municipal mask mandates may still be in effect.

Republican legislative leaders drafted an Amendment to the COVID-19 bill that curtails Governor Evers’ ability to declare future public health emergency orders during the COVID-19 pandemic. Under the bill, the Governor would have the power to declare a public health emergency order solely to receive emergency funding from the federal government, but could not require citizens to wear face coverings. The Wisconsin Assembly voted to approve the bill yesterday, and Senate passed the bill this afternoon. The Governor vetoed the bill, which also included important legislation such as immunity for businesses from civil liability and a provision regarding notes on inspections of occupancy permits.

At the heart of the issue, Republican legislative leaders and Governor Evers disagree whether Wis. Stat. § 323.10 allows the Governor to make successive executive orders relating to the same pandemic. The Wisconsin Supreme Court is currently reviewing the issue in Fabick v. Evers. The Court held oral arguments on the case in November of 2020, but has yet to release a decision. Without a ruling from the Wisconsin Supreme Court, the political battle between the Governor and the Legislature is expected to continue to play out in the coming weeks.