As of July 25, 2020, per the governor’s Executive Order 20-81, people in Minnesota are required to wear a face covering in all indoor businesses. Additionally, workers are required to wear a face covering when working outdoors in situations where social distancing cannot be maintained. Employers should be prepared to require that employees, customers, and visitors all wear masks in accordance with the order, as failure to do so could lead to fines and criminal penalties.

What Counts as a “Face Covering”?

Types of face coverings can include a paper or disposable mask, a cloth mask, a neck gaiter, a scarf, a bandana, or a religious face covering. A face covering must cover the nose and mouth completely.

Any mask that incorporates a valve that is 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 droplets to be released from the mask.

Requiring Employees to Wear Masks

All workers—which includes owners, proprietors, employees, contractors, vendors, volunteers, and interns—must wear face coverings when working indoors, unless wearing a face covering would create a job hazard for themselves or others.

Workers may temporarily remove their face covering while indoors when:

• Eating or drinking, provided that at least 6 feet of physical distance is maintained between all individuals.
• When a worker is 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 other enclosed work area. In such situations, the worker should still carry a face covering to be prepared for person-to-person interactions and to be used when no longer alone.

Further, workers must wear face coverings while working outdoors if social distancing cannot be maintained.

If an employee has a medical condition, mental health condition, or disability that makes it unreasonable for the person to wear a face covering, employers must provide accommodations to the employee if possible. Additionally, if wearing a face covering would create a safety hazard to the person or others as determined by local, state, or federal regulators or workplace safety guidelines, employers should also provide accommodations if possible.

Alternatives to masks such as clear face shields may be considered for those with health conditions or situations where wearing a mask is problematic. Face shields may also be used as an alternative to face coverings when specifically permitted in the applicable Industry Guidance available at Stay Safe Minnesota. Employers must follow the requirements of other applicable laws (such as the Americans with Disabilities Act and the Minnesota Human Rights Act) with respect to requiring documentation or asking questions about the condition that renders an employee unable to wear a face covering.

Requiring Customers and Visitors to Wear Masks

Businesses also must require customers and visitors to wear masks indoors and take reasonable steps to enforce the requirement. Businesses should also mitigate or eliminate worker and customer exposure to persons who cannot wear or refuse to wear a face covering. When possible, businesses should provide accommodations to customers who have a medical condition, mental health condition, or disability making it unreasonable for them to wear a face covering. This can include permitting the use of a face shield rather than a mask, or providing a service option that does not require a customer to enter the business. Businesses cannot require customers to provide proof of such a condition or require an explanation of a customer’s condition or disability.

The Executive Order does not permit businesses or their employees to enforce the requirement when it is unsafe to do so, or to restrain, assault, or physically remove workers or customers who refuse to comply with the order. Instead, businesses are in compliance with the order if they make “reasonable efforts” to enforce the order with respect to customers and visitors.

Industry Specific Guidance

Child care, K-12 schools, and high education institutions

The Executive Order establishes different or additional requirements, exceptions, and recommendations for child care, K-12 schools, and higher education institutions. Guidance specific to these settings can be found at the following web pages:

• Child care settings are required to comply with the face covering and face shield guidance available at Masking Recommendations for Child Care and Schools: COVID-19.
• Kindergarten through grade 12 schools are required to comply with the face covering and face shield guidance available at 2020-2021 Planning Guide for Schools (PDF).
• Higher education institutions are required to comply with the face covering and face shield guidance available at Institutes of Higher Education (IHE): COVID-19.

Restaurants and Bars

The Executive Order requires face coverings to be worn when specifically required by the applicable industry guidance. For restaurants and bars, the applicable industry guidance requires:

• All workers to wear a face covering in any part of the restaurant or bar, whether indoor or outdoor, unless a worker is working alone in an office or other enclosed or separated area where food is not stored, handled, or prepared.
• Workers to wear face shields when a face covering cannot be worn, such as when working in hot kitchens.
• Workers who have face-to-face interactions with customers must wear both a face covering and face shield when the customer is not wearing a face covering and it is not possible to maintain physical distance of at least 6 feet.
• Refer to Industry Guidance for Safely Reopening: Restaurants & Bars for additional guidance about the requirements applicable to bars and restaurants.

Retail and Personal Care Services

For both retail and personal care services settings, the applicable industry guidance provides:

• If the service being performed requires the customer to remove their face covering, the worker must wear both a face covering and face shield.
• Refer to the following for additional guidance about the requirements applicable to these industries:
  • Industry Guidance for Safely Reopening: Personal Care Services
  • Industry Guidance for Safely Reopening: Retail

Signage

Businesses are required to post one or more signs visible to all persons—including workers, customers, and visitors—instructing them to wear face coverings as required by the Executive Order.

Update COVID-19 Preparedness Plans

The Executive Order also requires all businesses to update their COVID-19 Preparedness Plan, if necessary, to reflect policies complying with the rest of the order.

Penalties

A business owner, manager, or supervisor who fails to comply with the executive order can be convicted of a misdemeanor and fined up to $1,000. In addition, the attorney general plus city and county attorneys may seek civil relief, including civil penalties up to $25,000 per occurrence.

More Information

The Minnesota Department of Health has issued guidance regarding Face Covering Requirements based on the Executive Order as well as FAQs on the Face Coverings, which includes a section for businesses and workers. Posters are available from the state here.

This summary does not address every requirement, exception, or industry-specific guidance in the Executive Order. Contact a Taft attorney for advice specific to your business.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.