Wisconsin Supreme Court Strikes Down Governor Evers’ Successive Executive Orders & Statewide Mask Mandate

March 31, 2021

Today, the Wisconsin Supreme Court, in a 4-3 ruling, held that the Governor is prohibited from declaring successive states of emergency in regards to the same enabling condition without legislative approval. This means that Democratic Governor Tony Evers is prohibited from issuing any new public health emergency orders as it relates to the COVID-19 pandemic without the approval of the Republican-controlled Wisconsin Legislature.

The Court struck down Executive Order 105, and as a result, the statewide mask mandate has been eliminated. However, local mask mandates remain in place in counties, municipalities, on university properties, and on tribal lands across the state. Many local governments enacted mask mandate orders in February after the Legislature attempted to overturn the statewide mask mandate through legislation, including Madison and Dane County, both the City and County of Milwaukee, both the City and County of Eau Claire, City of Green Bay, City of Whitewater, and the City of Racine. This list is not exhaustive; therefore, you should review your local government website and ordinances to determine whether a local mask mandate is in effect in your area. Due to the patchwork nature of local mask mandates, it is recommended that individuals continue to wear masks.

Businesses operating in areas where there is no local mask mandate in effect may require employees and customers wear a mask, with some exceptions. Many large retailers such as Costco Wholesale Club, Walmart, Target, CVS Health, and Walgreens require employees and shoppers wear face masks as a company policy. Businesses implementing mask policies should take care to provide reasonable accommodations to those with a disability or religious exemption, such as offering curbside pick-up to customers or offering a change in work environment for an employee. Employers should continue to follow CDC guidelines.

Axley will continue to keep you up to date with emerging legal issues. If you have questions about implementing a face mask policy at your place of business, please contact an attorney at Axley.