COVID-19: What the Recent Face Covering Directives Mean for Private Employers in Maine

Note: This alert supersedes and replaces an earlier alert on the same topic, issued on December 22, 2020.

In mid-December 2020, Maine Governor Janet Mills, the state’s attorney general’s office, the Maine Department of Health & Human Services, and the Maine Human Rights Commission published new guidance concerning mask directives and the availability of accommodations for individuals prevented from wearing a mask or face covering due to a disability. 

These publications have generated a number of questions within the employer community regarding the extent to which the governor’s face covering mandate applies in the context of private workplaces. We offer the following summary of the latest developments concerning face coverings and reasonable accommodations in Maine. While we don’t claim to have all the answers, we hope this alert will help to alleviate some confusion.

On December 11, 2020, Governor Mills issued executive order 19 FY 20/21, An Order Simplifying and Strengthening Enforcement of Face Covering Requirements (December 11 EO), in which she declared that owners and operators of “indoor public settings must require all persons to wear face coverings in publicly accessible areas,” or face criminal penalty. 

The December 11 EO contained three enumerated exceptions to the face covering requirement: (1) for a person under age two; (2) for a person who has “trouble breathing or related medical conditions, or who is otherwise unable to put on or remove the mask without assistance”; and (3) for a person with a “developmental issue that is complicated or irritated by a face covering.” 

Immediately after these enumerated exemptions, the Order provided, “Nothing in this Order should be interpreted as prohibiting a reasonable accommodation for those with a disability, but due to the direct threat to public health and safety, no such accommodation may make it permissible for any person to enter or remain in any indoor public setting without a face covering.” 

Thus, the December 11 EO contained an internal inconsistency whereby it simultaneously exempted individuals with certain medical conditions from the face covering requirement, while also prohibiting accommodations that would allow such persons to enter or remain in public settings without a face covering. In addition, the press release announcing the December 11 EO characterized the EO as clarifying “that claiming a medical exemption is not an excuse to enter or remain in an establishment without a face covering.”

On December 15, the governor amended the executive order relating to face coverings, though this amendment was not announced through a press release. This most recent executive order, 19-A FY 20/21 (December 15 EO) deletes two of the three exceptions to the face covering requirement pertaining to individuals with breathing or related medical conditions, those who are unable to push on or remove a mask without assistance, and those with developmental issues. The only remaining exception to the face covering requirement in the December 15 EO is for children under the age of two. The December 15 EO retains the paragraph concerning reasonable accommodation and, therefore, continues to preclude reasonable accommodation in the form of forgoing a face covering in any indoor public setting.

Although the December 15 EO does not define the term “public setting,” its preamble refers to EO 49 FY 19/20 (April 29 EO), in which Governor Mills first ordered that individuals wear cloth face coverings in public settings where physical distance is difficult to maintain. That EO defined “public setting” to include:

• Indoor spaces that are accessible to the public, such as grocery stores, retail stores, pharmacies, and health care facilities.

• Outdoor spaces such as playgrounds, busy parking lots, and other areas such as lines for takeout service where the public typically gathers in a smaller area.

• Public transportation such as a taxi, Uber, Lyft, ride-sharing or similar service; ferry, bus or train; and any semi-enclosed transit stop or waiting area.

This definition of “public setting” was subsequently broadened by EO 14 FY 20/21 (October 6 EO) to include publicly accessible state and local government buildings and grounds as well any other location that the Maine CDC, DHHS, and DECD identify as presenting a risk of transmission of COVID-19. 

Notably for private employers, at least at the time, the April 29 EO stated that “[e]mployers in settings that are not typically accessible to the public may determine the persons who should wear a cloth face covering at their workplace and shall permit any employee who wants to wear a cloth face covering to do so.” At that time, individuals were not required to mask in public settings unless unable to socially distance. Much has changed since April 29, leaving employers to question whether they still enjoy the relatively broad discretion recognized in the April 29 EO.

On December 16, 2020, the Maine attorney general’s office and the Department of Health and Human Services published joint Guidance on Enforcing Face Covering Rules in Public Settings (Face Covering Guidance), for the stated purpose of clarifying the scope of the governor’s executive orders regarding face coverings. The Face Covering Guidance offers several examples of “public settings,” including stores, restaurants, and municipal buildings. 

It provides that private homes and trails in the woods where people are unlikely to encounter others are not public settings. The Face Covering Guidance is silent, however, about whether establishments that are private businesses, not open to the public but in which groups of employees work in the same space, constitute “public settings” subject to the executive orders.

With respect to medical accommodations, the Face Covering Guidance suggests that reasonable accommodations “may include offering the option of a face shield, allowing for takeout or curbside service, or use of the services or a personal shopper in the store (with audio or video if needed).” 

Consistent with the December 11 and 15 EOs, the Face Covering Guidance unequivocally provides that allowing someone to enter or remain in an indoor public setting without a face covering creates a direct threat and is impermissible, even as a reasonable accommodation for a disability.

Meanwhile, the Maine Human Rights Commission (MHRC), which has jurisdiction over claims of discrimination in both employment and public accommodations, has updated its webpage devoted to COVID-19 Issues. Unlike the executive orders and Face Covering Guidance, which use the term “public setting,” the MHRC uses the term “public accommodation,” which is defined in the Americans with Disabilities Act (ADA) and Maine Human Rights Act (MHRA), and which does not necessarily align with the EOs’ definitions of “public setting” or the illustrative examples contained in the Face Covering Guidance. For example, public trails, which the Face Covering Guidance deems not to be a public setting, may or may not constitute a public accommodation under the ADA or MHRA.   

The MHRC’s guidance specific to face covering requirements is limited to the public accommodation context. The MHRC states that places of public accommodation must engage in a discussion with a patron who says they are unable to wear a mask or face covering for medical reasons and attempt to ascertain whether there is a reasonable accommodation that would enable the patron to enjoy the public accommodation’s goods or services, short of allowing them to forgo a face covering. 

Consistent with the EOs and Face Covering Guidance, the MHRC counsels that, given our current understanding of COVID-19 and how it is spread, the direct threat posed by the virus justifies refusing to allow patrons to enter a public accommodation without wearing a face mask or covering. 

These recent publications, read together, provide important and relatively clear guidance for public accommodations. While they must engage in a dialogue with patrons whose disabilities prevent them from wearing face coverings in order to identify possible alternative ways of ensuring access to goods and services, under no circumstances must or may a public accommodation allow an individual to enter or remain in an indoor space without some form of a face covering, which may take the form of a face shield. However, with the exception of the April 29 EO, none of the forgoing authorities directly addresses the obligations of private employers, not open to the public, to require face coverings or to consider allowing an employee to come to work without a mask if requested as a reasonable accommodation for a disability. 

The only guidance on this point we have been able to locate appears in DECD’s Face Covering Executive Order FAQs, which answers the question “Does this apply to private workplaces?” as follows: “Private employers whose staff do not interact with the public may determine the persons who should wear a face covering at their workplace. However, when people are in shared or public spaces in a workplace, they need to wear a face covering.” 

DECD does not define the term “shared,” leaving employers to wonder whether “shared” means “communal” (e.g. breakrooms, restrooms, internal hallways) or rather spaces that are shared with non-employees. Because the October 6 EO broadened the definition of “public setting” to include any location that DECD identifies as posing a risk of transmission, this ambiguity creates further uncertainty as to whether communal areas within private workplaces are subject to the December 15 EO, such that employers (1) must require face coverings, and (2) may not permit employees to forgo face coverings as a reasonable accommodation for a disability.

We can discern no reason that forgoing face coverings would pose more of a direct threat in the context of public accommodations, such as retail stores, than in the context of communal spaces within a private workplace. Whether or not the December 15 EO applies by its terms to private workplaces, we continue to advise private employers to develop and act in accordance with their Infectious Disease Preparedness and Response Plans, consistent with the applicable checklists and CDC guidance, all of which recognize the importance of masks for preventing the spread of COVID-19.

For questions on whether your business should require masking, or any other employment-related concern, please contact employment law partner Katy Rand.