Wisconsin’s Mask Mandate: What Your Business Needs to Know

July 31, 2020

On Thursday, July 30, Governor Evers issued Executive Order #82 declaring a public health emergency, and Emergency Order #1 requiring all people in Wisconsin over the age of 5 to wear face coverings while inside any enclosed space other than their own private residence. The Office of the Governor also issued a press release and included some FAQs about the new state-wide requirement. The Order goes into effect on August 1, 2020, at 12:01 am, and will remain in effect until September 28, 2020.

What qualifies as a face covering?

The order defines “face covering” as a piece of cloth or other material that completely covers the nose and mouth. This could be a bandana, a cloth face mask, a disposable face mask, a neck gaiter, or a religious face covering. It does not include face shields, mesh masks, masks with holes or openings, or masks with vents.

Where do face coverings have to be worn?

A face covering must be worn in any enclosed space that is not your home. An enclosed space is a space open to the public where people congregate. This is not limited to indoor spaces — it includes outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures.

When can a face covering be taken off?

You can take your face covering off if you are:

  • Eating or drinking;
  • Communicating with someone who is deaf or hard of hearing and other communication is impossible;
  • Sleeping (i.e., firefighters sleeping in a fire station);
  • Swimming or on duty as a lifeguard;
  • Giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience, as long as you leave at least 6 feet of space between yourself and other attendees at all times;
  • When government safety guidelines and regulations for your work advise that wearing a face covering could be a health or safety risk;
  • When confirming your identity, such as at a bank or when purchasing alcohol; or
  • When engaging in activities where federal or state law regulations prohibit face coverings.

Who doesn’t have to wear a face covering?

  • Children under the age of 5. Children between the ages of 2 and 5 are highly encouraged to wear a face mask when at all possible;
  • Individuals who have trouble breathing;
  • Individuals who are unconscious or incapacitated;
  • Individuals with medical conditions, intellectual or developmental disabilities, mental health conditions or other sensory sensitivities that prevent the individual from wearing a face covering; and
  • Incarcerated individuals.

Do I have to wear a mask in my office or place of work?

Face coverings have to be worn inside places of work unless an exception applies. However, the Governor’s FAQs explains that you are not required to wear a mask outside of your private residence if you are the only person in a room. This likely applies to single offices, but the face covering should be worn at all other times if you are in a room with anyone except those in your immediate family unit.

What should a business do if an employee refuses to wear a face covering?

An employer is not required to enforce the Order, but ignoring violations could be construed as condoning such violations and thus subject the employer to enforcement. If a non-exempt employee refuses to wear a face covering, an employer may discipline him or her for failure to follow a lawful Order and for subjecting other employees to risk.

The best way to enforce the Order in the workplace is to advise employees that they are required to wear a face mask unless they are exempt or performing exempt activities.

Is there a liability if my employee refuses to wear a mask?

Maybe. If an employer is viewed as condoning violations of the Order, that employer could potentially be subject to enforcement.

What should a place of business do if a patron is refusing to wear a face covering?

Patrons are required to follow the law. A business is not required to admit patrons who refuse to comply with the Order. If a patron refuses to put on a mask without a legitimate excuse and refuses to leave, a business can call law enforcement to have the patron removed.

The order does not require exempt persons to wear a face covering and does not require exempt persons to carry documentation of their status, so verification of a patron’s status could be difficult. Because this is the case, the best practice is likely posting signs that alert all patrons of the mask requirement, and asking any patron not wearing a mask to put one on. If a patron cannot put a mask on because he or she is exempt, a business can still require that patron to maintain six feet social distancing requirements at all times while inside the business.

Does a business need to supply masks for employees or patrons?

No. The Order encourages all people in Wisconsin to supply their own masks, and links to some DIY instructions for making them. However, many businesses may decide to offer masks to employees and patrons, and are encouraged to do so.

What is the penalty for not wearing a face covering?

Law enforcement can fine an individual $200 for failing to comply with the mask requirement.

What if my city or town already has a face covering or mask order?

Governor Evers’s Order sets a minimum standard statewide. If your city or town has stricter requirements, those requirements must be followed.

Emma L. Ferguson
Emma L. Ferguson