What the statewide mask order means for contractors

Many of our members have asked ABC of Wisconsin to interpret Gov. Tony Evers’ latest emergency order in response to the ongoing COVID-19 pandemic. The governor declared a public health emergency and mandated the statewide use of face masks for all residents age 5 and older when they are indoors or in an enclosed space – other than a private residence – with anyone outside their household or living unit. The order goes into effect at 12:01 a.m. on Saturday, Aug. 1 and expires on Sept. 28, 2020, unless repealed by a subsequent superseding emergency order, an act of the Legislature or a ruling by the courts. The order is enforceable by local law authorities with a fine not to exceed $200.

“Enclosed spaces” include – but are not limited to – outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures. The statewide requirement specifically supersedes any local order that is less restrictive.

IMPLICATIONS FOR CONTRACTORS
All employees will be required to wear face coverings unless outdoors or the only person in a enclosed space. While several law enforcement agencies have indicated they will not enforce the order, employers need to know that local health departments may enforce it. Even though the obligations of the governor’s order apply to individuals, the mandate could have implications for civil claims made by employees regarding the requirement to provide a safe work environment. Contractors are well advised to do a risk assessment to determine what personal protective equipment (PPE) are needed to keep employees safe.

ABC of Wisconsin has developed a series of questions and answers to help contractors navigate through this statewide mandate:

Does the mask order apply to contractors and their employees?

Yes. You need to wear a face covering whenever you are indoors or in an enclosed space, other than a private residence (unless someone from another household visits a private residence), and other people are present in the same room or space. “Enclosed space” means a contained space that is 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. This means essentially all work areas that are not entirely outdoors with another non-family member present.

When is the order in effect?

The emergency order goes into effect at 12:01 a.m. on Saturday, Aug. 1, 2020 and expires on Sept. 28, 2020, unless repealed by a subsequent superseding emergency order, action by the Legislature or action by the courts.

What if I can physically distance from other people inside a building? Do I need to wear a mask?

Yes. This mandate requires that you wear a face covering indoors, even if you can distance six feet or more, unless you are at a private residence or you’re the only person in the room. The requirements include when you are inside large, open spaces within buildings that are under construction unless you are the only individual in a separate enclosed room with a closed door.

What about inside businesses and office spaces?

Yes, unless an exception applies, you will need to wear a mask whenever you are indoors and another individual from a different household is present, even if you are able to distance six feet or more. If you can enclose yourself by closing an office door, you do not have to wear a mask.  A mask would be required if you leave your enclosed office and would have a chance of encountering other individuals in the same open space who are not from your household.

Is the Governor’s statewide “mask mandate” legal?

Legal experts disagree. Only the Wisconsin Supreme Court can answer the legal question. Until a suit is brought, and a decision is issued, we simply do not know if its legal.

Is the mask mandate enforceable?

This order supersedes any local order that is less restrictive and is enforceable, until it is not. There are a few ways the order could be reversed. The court could rule it unconstitutional. The Governor could rescind the order. Or, the Legislature could pass a Joint Resolution rescinding the public health emergency. Until (and unless) one of those things happen the order is enforceable. (See: Who will enforce the mandate? below).

Who will enforce the mandate? Will OSHA be enforcing it?

OSHA will not be enforcing it because it is a local/state requirement. Enforcement of the order is left to “state and local” officials. Some law enforcement agencies have indicated they will not enforce the order, but that does not mean those who violate the order are immune from fines. Violating the order may result in a civil fine up to $200.

When and how could OSHA become involved with this state mandate?

Contractors are well advised to do a risk assessment to determine what personal protective equipment (PPE) are required to keep employees safe. If you have an outbreak of COVID-19 cases on/from your site, OSHA may become involved per the OSHA General Duty Clause (see next question). Contact ABC of Wisconsin for more details on risk assessments.

What is the General Duty Clause and what are my obligations as an employer?

Under the General Duty Clause of Section 5 of the Occupational Safety and Health Act, there are two responsibilities for the employer (section 5(a)). The employer:

  1. shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
  2. shall comply with occupational safety and health standards promulgated under this Act.

If your site has a COVID-19 outbreak, OSHA may consider whether you adhered to any local or state emergency order in effect at the time.

What are my obligations as a General Contractor to ensure that employees of subcontractors on my jobs comply with the order?

The mask order specifically applies only to individuals and its terms do not appear to require enforcement by entities. General Contractors normally, however, maintain site-specific safety guidelines and should add the mask requirement to its normal safety guidelines.

What are my obligations as an employer to ensure my employees comply with the order?

While the obligations of the Governor’s order apply to individuals, an employer that does not take reasonable steps to require employees to comply with the order could risk civil claims based around the requirement to provide a safe working environment. While the viability of these claims is unknown, risk exists for employers that knowingly permit employees to ignore the order.

What if an employee “refuses” to wear a face covering?

Employers may enforce non-discriminatory rules through its normal process. Many employers rely on progressive discipline. Unionized employers may have a duty to bargain rules before imposing them. To the extent that employees claim that a medical condition precludes them from wearing a mask, the normal accommodation interactive process, including proof of the need for the accommodation, still applies.

Does the fogging of safety glasses exempt employees from having to wear masks?

No. Contractors should take the necessary steps to remediate fogging of glasses so they are not a safety hazard. This may include the use of anti-fogging glasses, anti-fogging spray or wipes, or the use of another type of mask.

Do employees need to wear masks when traveling to jobs or jobsites?

If individuals are sharing a vehicle with persons from another household, masks must be worn.

Does the use of a face shield meet the requirement?

No. This order does not allow the use of a face shield to replace a face covering, unless a mask would create a risk to the individual.

Do employees need to wear masks on breaks or at lunch?

No. Employees are not required to wear masks when eating or drinking, but masks must be used as soon as employees are done with these activities.

CHALLENGES TO THE ORDER
The situation is changing rapidly. The latest emergency order is facing strong opposition from the state Legislature, which may result in the order being overturned. The independent free market think thank Wisconsin Institute of Law and Liberty (WILL) has threatened a legal challenge to Evers’ order, but it is unknown whether the Wisconsin Supreme Court would hear any legal challenges to the order before its Sept. 28 end date.

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