By now, I am sure you know that on Wednesday, July 22, 2020, Minnesota Governor Tim Walz issued Emergency Executive Order 20-81, which is the statewide face covering requirement. The Order took effect on Friday, July 24, 2020 at 11:59 p.m.
In this blog, I will address some of the key requirements for businesses (the Order itself addresses other areas as well, such as childcare and school settings). The primary takeaway is that businesses must require that all people, including their workers, customers, and visitors, wear face coverings.
To Whom Does the Order Apply (Numbered Paragraphs 2, 3, 15(a))?
The Order applies to “indoor businesses and indoor public settings,” as well as to workers outdoors when it is not possible to maintain at least six feet of distance from other individuals who are not members of the same household. It applies to private-sector businesses, public-sector entities, non-profit organizations, and state, county, and local governments.
For purposes of the Order, the term “workers” includes more than just employees. Owners, proprietors, employees, contractors, vendors, volunteers, and interns are all expressly included within the definition of “workers.”
What is a Face Covering (Numbered Paragraph 3)?
A face covering includes “a paper or disposable face mask, a cloth face mask, a scarf, a bandanna, a neck gaiter, or a religious face covering,” as long as it is “worn to cover the nose and mouth completely.” “Masks that incorporate a valve designed to facilitate easy exhaling, mesh masks, or masks with openings, holes, visible gaps in the design or material, or vents are not sufficient face coverings because they allow exhaled droplets to be released into the air.”
When is a Face Covering Mandatory (Numbered Paragraph 9)? The Order requires a face covering in several situations. The following are the ones most applicable to business entities:
- In an indoor business or public space, including when waiting outdoors to enter.
- In any place that requires a face covering even if it would not otherwise be required by this Order.
- For workers who are working outdoors where social distancing cannot be maintained.
- When applicable industry guidance (https://staysafe.mn.gov) specifically requires face coverings.
Who is Exempt From the Order (Numbered Paragraph 8)?
Individuals who have “a medical condition, mental health condition, or disability that makes it unreasonable for the individual to maintain a face covering” are exempt. Examples include individuals who have a medical condition that compromises their breathing and “individuals who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance.” Exempt individuals are to consider using alternatives, such as clear face shields, and staying home as much as possible.
If wearing a face covering would create a job hazard for the individual or others, then such individual is exempt. Whether such a job hazard exists is “determined by local, state or federal regulators or workplace safety and health standards and guidelines.”
Children under two should never wear a face covering. Children who are five years old and under are exempt from the Order but, if they are at least two years old, they are encouraged to wear a face covering if they can do so in compliance with CDC guidance.
When Can a Face Covering be Temporarily Removed (Numbered Paragraph 10)?
The Order provides for a number of situations in which a face covering can be temporarily removed. Most relevant to businesses is Paragraph 10(j), which provides: “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.” Even for individuals in these circumstances, the Order provides that they “should still carry a face covering to be prepared for person-to-person interactions and to be used when no longer alone.”
Do Businesses Need to Update Their COVID-19 Preparedness Plan (Numbered Paragraph 13)?
Yes. Businesses must update their COVID-19 Preparedness Plan to include the new face covering requirements. In addition, businesses must inform their workers how the plan has been updated and must make the plan available to their workers.
Do Businesses Need to Update Their Signage (Numbered Paragraph 14)?
Yes. One or more signs that are visible to everyone, including workers, customers, and visitors, must be posted. Such signage must instruct individuals to wear face coverings required by the new Order.
What Should Businesses do For Individuals Who Cannot Wear a Face Covering (Numbered Paragraph 15(b – d))?
When possible, businesses must provide accommodations to individuals (including workers and customers) who state they have a medical condition, mental health condition, or disability that makes it unreasonable for them to maintain a face covering. Examples of accommodations include permitting the use of an alternate face covering, such as a face shield, or providing service options that do not require a customer to enter the business.
Businesses are not allowed to ask a customer to explain their condition or disability or require proof of any such condition or disability. For workers, what a business can ask or require is governed by other applicable laws.
What if a Worker or Customer Refuses to Comply (Numbered Paragraph 15(e))?
Businesses and their workers do not have to enforce the Order if it is unsafe to do so. Similarly, they are not authorized to restrain, assault, or physically remove a worker or customer who refuses to comply.
The Bottom Line: What is Required for a Business to be in Compliance With Emergency Executive Order 20-81 (Numbered Paragraph 20(b)(i))?
A business will be in compliance with the new Order if “(1) their workers are wearing face coverings as required by this Executive Order; (2) the business has updated their COVID-19 Preparedness Plan to address the face covering requirements of this Executive Order; (3) the business has posted one or more signs that are visible to all persons—including workers, customers, and visitors—instructing them to wear face coverings as required by this Executive Order; and (4) the business makes reasonable efforts to enforce this order with respect to customers and visitors.
What Are The Penalties to a Business for Non-Compliance (Numbered Paragraph 20(b)(ii))?
Any business owner, manager, or supervisor who fails to comply is guilty of a misdemeanor. Punishment includes a fine of up to $1,500 or imprisonment for up to 90 days. In addition, the Attorney General and city and county attorneys can seek additional civil relief, including penalties of up to $25,000 per occurrence and injunctive relief.
I hope this helps you comply with Emergency Executive Order 20-81.