July 27, 2020
On Friday, July 24, 2020, Indiana Governor Eric Holcomb issued Executive Order 20-37, entitled Face Covering Requirement (the “Executive Order”). The Executive Order implements a state-wide face covering mandate, adding to multiple local mandates already in place and existing industry-specific standards. Localities may enact provisions that are stricter than the Executive Order; however, they cannot enact provisions to nullify the Executive Order.
All Indiana organizations should carefully evaluate their existing COVID-19 safety plans (or create one if they have not already done so) to ensure compliance with this Executive Order and previous ones issued by the Governor, any local provisions regarding mandatory face coverings, and any existing industry-specific standards. Individuals are now required to wear face coverings over the nose and mouth in most indoor and many outdoor spaces open to the public. With respect to indoor spaces, private offices, workspaces, and meetings with an ability to maintain social distancing requirements for people not of the same household are exempt. With respect to outdoor spaces, face coverings are required when six feet of social distancing cannot be maintained with individuals outside one’s household. Given the rapidly changing COVID-19 compliance environment, organizations should continue to regularly review applicable local, state, and federal requirements and guidance and update their COVID-19 safety plans accordingly.
Section 6 of the Executive Order detailed guidelines for K-12 educational institutions. On Thursday, July 30, 2020, Governor Holcomb issued Executive Order 20-39 rescinding Section 6 and providing additional requirements and exemptions. Please visit our most recent client alert K-12 Educational Institutions and Indiana’s Face Covering Mandate for more information.
Q & A REGARDING INDIANA’S FACE COVERING MANDATE
When does the Executive Order become effective?
The Order became effective at 12:01 a.m. on Monday, July 27. It will remain in effect for 30 days, expiring at 11:59 p.m. on August 26 unless otherwise modified or extended.
Who is subject to the Executive Order?
“Every individual within the State of Indiana” is subject to the Executive Order. There are, however, numerous exemptions to the face covering requirement.
Section 4 of the Executive Order exempts the following individuals from the directive to wear a face covering but strongly encourages wearing a face covering when practicable and without undue risk or a face shield:
Where must individuals wear face coverings?
Section 1 provides that “every individual within the State of Indiana shall wear a face covering over the nose and mouth when:
The Executive Order does not remove or “modify any prior directives requiring employees and staff at restaurants, bars, taverns, wineries, breweries, gyms, exercise and fitness centers and personal service businesses to wear face coverings.” Such directives will remain in place until the end of the public health emergency unless specifically rescinded.
What does this mean for employers?
The Executive Order will apply differently to each employer. Most employees will likely need to wear a face covering for a part, or all, of the workday. The specific requirements for employees will depend on numerous factors, including the following:
What qualifies as a “face covering” or a “face shield”?
The Executive Order defines a face covering as “a cloth which covers the nose and mouth and is secured to the head with ties, straps, or loops over the ears or is simply wrapped around the lower face.” The Executive Order defines a face shield as “a mask, typically made of plastic, which covers the nose and mouth.”
What is the penalty for non-compliance?
The Executive Order states that its purpose is “to protect the health and lives of Hoosiers, to ensure businesses will remain open, to allow schools to reopen and operate safely, and to allow Hoosiers to continue to participate in their chosen activities.” State and local health departments are responsible for enforcing compliance through “education about the importance of wearing face coverings and dispelling myths and misconceptions about the use and/or the benefits of the requirement.” Despite Governor Holcomb’s initial statement that failure to comply would constitute a Class B Misdemeanor, there is currently no civil or criminal penalty for non-compliance. Nonetheless, it is a binding Executive Order directed toward public health and safety. Vigilance in following the Executive Order’s directives could also assist organizations in avoiding potential liability arising from claims that may be asserted by employees, visitors, customers, and other third parties. Likewise, organizations should continue monitoring state and local health departments’ requirements.
If your organization needs assistance reviewing and updating your COVID-19 safety plan, please contact Shelley M. Jackson or Kate E. Trinkle of Krieg DeVault LLP’s Labor and Employment practice group.
Disclaimer. The contents of this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult with counsel concerning your situation and specific legal questions you may have.