Monday 28 December 2020
In mid-December 2020, Maine Governor Janet Mills, the Attorney General, the Maine Department of Health, and the Maine Human Rights Commission released new guidelines on mask guidelines and the availability of shelter for those unable to wear a mask or face covering due to a disability.
These publications have raised a number of questions within the employers’ community as to the extent to which the governor’s mandate to cover face applies in the context of private jobs. We provide the following summary of the latest developments in face covering and reasonable accommodation in Maine. While we don’t claim to have all of the answers, we hope this warning will help ease the confusion.
On December 11, 2020, Governor Mills issued Executive Ordinance 19 FY 20/21, an ordinance to simplify and strengthen the enforcement of facial coverage requirements (December 11th EO), in which she stated that owners and operators of indoor public facilities all persons are required to wear face covering in public areas or be prosecuted.
The December 11 EO contained three listed exemptions from the face covering requirement: (1) for a person under two years of age; (2) for an individual who “has difficulty breathing, related illnesses, or otherwise cannot put on or remove the mask without assistance”; and (3) for a person with “a developmental problem complicated or irritated by face covering”.
Immediately after these listed exceptions, the regulation read: “Nothing in this regulation should be construed as prohibiting reasonable accommodation for people with disabilities. However, because of the direct threat to public health and safety, such a precaution must not allow a person to enter or remain in an indoor public environment without a face covering. ”
For example, the December 11 EO contained an internal inconsistency that exempted people with certain medical conditions from having to cover their faces while banning accommodation that would allow them to enter or stay in public facilities without a face covering. In addition, in the press release in which the PO was announced on December 11th, it was made clear to the PO that “the use of a medical exemption is not an excuse to enter or remain in an establishment without face covering”.
On December 15, the governor changed the executive order regarding face coverings, although that change was not announced in a press release. This latest ordinance, 19-A FY 20/21 (December 15, EO), removes two of the three exemptions from the face covering requirement that affect people with respiratory distress or similar medical conditions who are unable to put on a mask or remove without help and those with developmental problems. The only remaining exception to the obligation to cover face in the EO of December 15 concerns children under two years of age. The EO of December 15 retains the paragraph on reasonable accommodation and therefore continues to exclude reasonable accommodation in the form of foregoing face covering in indoor public spaces.
Although the December 15 EO does not define the term “public environment”, its preamble refers to EO 49 FY 19/20 (April 29 EO), in which Governor Mills first ordered that people in public environments where physical Removal consists of wearing fabric face covers difficult to maintain. This EO defined “public attitudes” to include:
Indoor spaces open to the public such as grocery stores, retail stores, pharmacies, and healthcare facilities.
Outdoor areas like playgrounds, busy parking lots, and other areas like takeout queues where the public usually gathers in a smaller area.
Public transportation such as taxi, Uber, Lyft, ridesharing or similar services; Ferry, bus or train; and all semi-closed transit stops or waiting areas.
This definition of “public space” was later expanded by EO 14 FY 20/21 (October 6, EO) to include publicly accessible buildings and land owned by state and local authorities, as well as any other location that the CDC, DHHS and DECD in Maine consider presenting identify a risk of transmission of COVID-19.
In particular for private employers, at least at that time, the PO declared on April 29th: “[e]Employers in settings that are normally not open to the public can designate who should wear fabric cover in their workplace and allow any employee who wishes to wear fabric cover to do so. “At the time, individuals did not have to mask themselves in public settings unless they could not socialize. Much has changed since April 29th, so employers have to wonder if they still have the relatively broad discretion recognized in the April 29 EO.
On December 16, 2020, the Maine Attorney General and the Department of Health and Human Services issued joint guidelines on enforcing face-covering rules in public facilities (Face-covering Guidelines) to increase the scope of the governor’s orders with respect to the executive branch clarify face coverings. The face-covering guide provides several examples of “public facilities,” including shops, restaurants, and city buildings.
It stipulates that private homes and hiking trails in the woods, where people are unlikely to meet others, are not public facilities. However, the guidelines on face covering do not mention whether establishments that are private companies, not open to the public, but where groups of employees work in the same room, constitute “public establishments” subject to the implementing regulations subject.
With respect to medical accommodation, the Face Covering Guide suggests that reasonable accommodation be “offering the option of face protection, providing take-away or roadside service, or using the services or a personal in-store shopper (with audio or video if these are possible) may include required). ”
In accordance with the EOs of December 11th and 15th, the guideline for face covering clearly states that entering or remaining in a public indoor environment without face covering poses a direct threat and is inadmissible even as a reasonable provision for a disability.
In the meantime, the Maine Human Rights Commission (MHRC), which deals with discrimination claims in both employment and public housing, has updated its website on COVID-19 issues. In contrast to the Executive Orders and Face Covering Guidance, which use the term “Public Setting,” the MHRC uses the term “Public Accommodation,” which is found in the American With Disabilities Act (ADA) and the Maine Human Rights Act (MHRA) This does not necessarily have to be in line with the EO’s definitions of “public environment” or the illustrative examples in the guidelines for face covering. For example, public walking trails that are not classified as a public environment under the guidelines on face covering may or may not constitute public accommodation under the ADA or MHRA.
The MHRC’s guidelines, specifically relating to face coverage requirements, are limited to the context of public housing. The MHRC states that public accommodation places must have a discussion with a user who indicates they cannot wear a mask or face covering for medical reasons and must try to determine whether there is adequate accommodation that will allow the user to the public enjoying goods or services at the accommodation without being able to do without face covering.
In accordance with the EOs and Face Covering Guidelines, the MHRC advises that given our current understanding of COVID-19 and its spread, the direct threat posed by the virus justifies the refusal to allow people without a face mask to visit public accommodation to enter or cover.
Together, these recent publications provide important and relatively clear guidance on public accommodation. While they must engage in dialogue with patrons whose disabilities prevent them from wearing face-covering in order to identify possible alternative ways of ensuring access to goods and services, public accommodation must not or must under no circumstances allow any person to enter or allow staying in such an interior space without any form of face covering, which may be in the form of a face shield. However, with the exception of the PO of April 29, none of the aforementioned authorities address directly the obligations of private employers, who are not open to the public, to require face coverings or to consider allowing an employee to come to work without a mask Reasonable Disability Accommodation if so requested.
The only guidance we could find on this point is in the DECD’s Frequently Asked Questions (FAQs) on face covering, which answers the question “Does this apply to private workplaces?”. as follows: “Private employers whose employees do not interact with the public can determine who should wear face covering in their workplace. However, when people are in a common or public space at a workplace, they must wear face covering. ”
DECD does not define the term “shared” and leaves employers wondering whether “shared” means “communal” (e.g. break rooms, toilets, internal hallways) or rather rooms that are shared with non-employees. Since the PO extended the definition of the term “public environment” on October 6th to include all places classified as risk of transmission by the DECD, this ambiguity leads to further uncertainty as to whether common areas in private workplaces are subject to the December 15 PO so that employers (1) must require face-covering, and (2) must not allow workers to waive face-covering as a reasonable provision for a disability.
We can see no reason that the elimination of face-covering poses a greater direct threat in the context of public accommodation such as retail stores than in the context of common spaces in a private workplace. Regardless of whether or not the December 15 EO applies to private workplaces under its provisions, we encourage private employers to continue, in accordance with the applicable checklists and CDC guidelines, all of which recognized their plans for preparing and responding to infectious diseases To develop and act accordingly Importance of masks to prevent the spread of COVID-19.
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