Unmasking Mask Questions for Businesses

By Thomas E. Marshall

On July 22, 2020, Governor Walz issued Executive Order 20-81, mandating mask wearing for virtually everyone in Minnesota in a social interaction or indoor setting. https://www.leg.state.mn.us/archive/execorders/20-81.pdf. Now that the Order has been around for a month, let’s review the questions about the use of masks, employers’ obligations, and the penalties if businesses fail to comply.

1. What is an acceptable mask? According to the Order, just about anything. The Order provides that a mask can be: A “face covering” must be worn to cover the nose and mouth completely, and can include a paper or disposable face mask, a cloth face mask, a scarf, a bandanna, a neck gaiter, or a religious face covering. Order ¶ 3(a).

2. When do I have to wear the mask? Most of the time. The Order requires masks:

1. In an indoor business or public indoor space, including when waiting outdoors to enter an indoor business or public indoor space.
   1. This requirement does not apply in living units except that (1) workers entering another person’s living unit for a business purpose are required to wear a face covering when doing so; and (2) visitors, patients, residents, or inmates of hospitals, shelters or drop-in centers, long-term care facilities, residential treatment facilities, residential programs licensed under Minnesota Statutes 2019, Chapter 245D, or correctional facilities must wear a face covering even when in a living unit if required by the facility.
   2. This requirement also does not apply in a private vehicle that is being used for private purposes.
2. Applicable industry guidance, available on the Stay Safe Minnesota website (https://staysafe.mn.gov) specifically requires face coverings. In some instances, face shields may be required in addition to or instead of face coverings or may be allowed as an alternative to face coverings.

Order ¶ 9.

3. When can I take my mask off? Well, frankly, you can’t take it off and leave it off! The Order provides a list of occasions when masks can be “temporarily removed”

1. When participating in organized sports in an indoor business or indoor public space while the level of exertion makes it difficult to wear a face covering.
2. When exercising in an indoor business or public indoor space such as a gym or fitness center, while the level of exertion makes it difficult to wear a face covering, provided that social distancing is always maintained.
3. When testifying, speaking, or performing in an indoor business or public indoor space, in situations or settings such as theaters, news conferences, legal proceedings, governmental meetings subject to the Open Meeting Law (Minnesota Statutes 2019, Chapter 13D), presentations, or lectures, provided that social distancing is always maintained. Face shields should be considered as an alternative in these situations.
4. During practices or performances in an indoor business or indoor public space when a face covering cannot be used while playing a musical instrument, provided that social distancing is always maintained.
5. During activities, such as swimming or showering, where the face covering will get wet.
6. When eating or drinking in an indoor business or indoor public space, provided that at least 6 feet of physical distance is maintained between persons who are not members of the same party.
7. When asked to remove a face covering to verify an identity for lawful purposes.
8. While communicating with an individual who is deaf or hard of hearing or has a disability, medical condition, or mental health condition that makes communication with that individual while wearing a face covering difficult, provided that social distancing is maintained to the extent possible between persons who are not members of the same household.
9. While receiving a service-including a dental examination or procedure, medical examination or procedure, or personal care service-that cannot be performed or would be difficult to perform when the individual receiving the service is wearing a face covering. Workers performing services for an individual who is allowed to temporarily remove their face covering under this provision must comply with face covering requirements in the applicable industry guidance, available at the Stay Safe Minnesota website (https://staysafe.mn.gov).
10. When an individual is alone, including when alone in an office, a room, a cubicle with walls that are higher than face level when social distancing is maintained, a vehicle, or the cab of heavy equipment or machinery, or an enclosed work area. In such situations, the individual should still carry a face covering to be prepared for person-to-person interactions and to be used when no longer alone.
11. When a public safety worker is actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, in situations where wearing a face covering would seriously interfere in the performance of their public safety responsibilities.

Order ¶ 10.

4. When can I refuse to wear a mask? It depends on the circumstances. The Order identifies several exemptions, as follows:

Exempt individuals. The following individuals are exempt from face covering requirements of this Executive Order:

1. Individuals with a medical condition, mental health condition, or disability that makes it unreasonable for the individual to maintain a face covering. This includes, but is not limited to, individuals who have a medical condition that compromises their ability to breathe, and individuals who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance. These individuals should consider using alternatives to face coverings, including clear face shields, and staying at home as much as possible.
2. Children who are five years old and under. Those who are under two-years old should never wear a face covering due to the risk of suffocation. Those who are at least two are encouraged to wear a face covering if they can do so in compliance with CDC guidance on How to Wear Cloth Face Coverings, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/how-to-wear-cloth-face-coverings.html (i.e., without frequently touching or removing the covering).
3. Individuals at their workplace when wearing a face covering would create a job hazard for the individual or others, as determined by local, state or federal regulators or workplace safety and health standards and guidelines.

Order ¶ 8.

5. If someone says they can’t wear a mask because of a medical condition, can I ask them to prove it? No, for customers, you’ll just have to take them at their word. The Order states:

Businesses may not require customers to provide proof of a medical condition, mental health condition, or disability, or require customers to explain the nature of their conditions or disability.

Order ¶ 15(c).

6. If a customer can’t wear a mask, then what do I do? You have to look at other options. The Order states:

When possible, businesses must provide accommodations to persons, including their workers and customers, who state they have a medical condition, mental health condition, or disability that makes it unreasonable for the person to maintain a face covering, such as permitting use of an alternate form of face covering (e.g., face shield) or providing service options that do not require a customer to enter the business.

As long as social distancing could be met, you could meet outside, or use a plexiglass shield for interactions. Zoom or other social media platforms can substitute for face-to-face meetings quite well.

7. What about employees who say they cannot wear a mask because of a medical condition? In that case, you follow the same steps that you would for determining a reasonable accommodation and the employee would be required to share medical information as they would for any other medical accommodation. The Order provides:

Businesses must follow the requirements of other applicable laws with respect to whether a business may require a worker to provide documentation of a medical condition, mental health condition, or disability related to their inability to wear a face covering and what the business may ask regarding the condition or disability.

Order ¶ 15(d).

Remember that under state and federal law, employers with less than fifteen employees have no obligation to accommodate a disability.

8. What if an employee or customer says they can’t wear a mask for religious reasons. Gov. Walz’ Order is conspicuously silent on that front. However, the Order does say that “Nothing in this Executive Order authorizes businesses or their workers to violate other laws, including anti-discrimination laws.”

Arguably then, a person could provide religion as a reason for not wearing a mask. However, an employer’s obligation to deal with a religious accommodation is not the same as dealing with a disability accommodation. For a disability, an employer of 15 or more employees must make a reasonable accommodation for the employee provided it does not cause an undue hardship to the employer. In a religious accommodation situation, the employer need not make any accommodation that would result in more than a “de minimus” cost to the employer. Considering the international scope of the pandemic, and state and federal measures to combat the virus, combined with the stated necessity of the government and agencies like the CDC and Minnesota Department of Health advocating the use of masks, an employer could likely deny a request to wear a mask. There are alternatives, such as plastic shields, which should alleviate any reasonable concerns of an employee.

9. What if someone refuses to wear a mask? The Order directs that “Businesses must require that all persons, including their workers, customers, and visitors, wear face coverings as required…” Order ¶ 15(a). A business doesn’t have to take unsafe measures, such as “restrain, assault or physically remove workers or customers who refuse to comply.” Order ¶ 15(e).

The Order provides severe and significant penalties for businesses, their owners and management for failure to comply. Sanctions include criminal charges (up to a misdemeanor, $1,000 fine, and not more than 90 days in jail), civil enforcement and fines (of up to $25,000), and regulatory enforcement (e.g., actions by government authorities that license or regulate the business a $25,000 fine for each occurrence). Order ¶ 20(b). The state has shown that they will enforce it too!

While Gov. Walz said enforcement was not his goal, Attorney General Keith Ellison brought an action against a farmer in Effie, Minnesota for having a rodeo on his property (which he had for the last 65 years). The rodeo was set before empty bleachers but persons were invited to “protest the ridiculous Government Over Reach.” Many did and gave donations to the organizer. “In the enforcement action brought this week, the Attorney General is seeking civil penalties of up to $25,000 per violation, restitution, disgorgement, and/or damages to the State, as well as the Office’s costs and fees, and other equitable relief. Ellison says the Attorney General’s Office will continue to take enforcement actions as necessary to protect the health and safety of the public.” https://www.grandrapidsmn.com/covid-19/mn-attorney-general-taking-action-against-effie-rodeo/article_9aa39bec-d68f-11ea-92c8-9bc55aef88b1.html. See also Order ¶ 20(b)(ii). Apparently one person tested positive for the virus after the rodeo. It is unknown if the person actually contracted the virus there.

As of this writing, I am unaware of any prosecution in the Twin Cities for lack of mask wearing but, if the Attorney General is willing to go after a farmer in Itasca County, where there have only been 135 COVID cases since the outset of the virus, just think how many potential defendants could face prosecution in Hennepin County, where over 18,000 cases of COVID have been identified. https://mn.gov/covid19/data/covid-dashboard/index.jsp

10. What about penalties for individuals? Individuals, unlike businesses, face a petty misdemeanor fine of $100. Order ¶ 20(a). If someone comes to your business and won’t wear a mask, doesn’t fit any exemptions and won’t meet in some alternative fashion, tell them to leave.