New Mask Order To Apply Across Washington
On June 24, 2020, Washington Secretary of Health John Wiesman (the “Secretary”) issued an Order requiring “Face Coverings – Statewide” effective June 26, 2020. This blog entry discusses how we got to this point, the Secretary’s authority for the new Order, and an overview of the new facial covering requirements.
How Did We Get Here?
In early May 2020, Washington Governor Jay Inslee announced his plan for reopening Washington State. The Safe Start Washington phased reopening plan originally rolled out on May 4, 2020, and later modified to implement a phased “County-by-County” approach on May 31, 2020, set various target metrics for the state and individual counties to achieve during the phased reopening process. One of those metrics is a goal to keep “newly diagnosed cases during the prior two weeks” at an average rate below 25 per each 100,000 residents.
According to the Governor’s COVID-19 Risk Assessment Dashboard, the state-wide rate for newly diagnosed cases hit a high of 72.1 per 100,000 Washingtonians for the 2-week period ending on April 4th, approximately two weeks after the Governor’s original “Stay Home-Stay Healthy” Order took effect. During the early period of the quarantine, the state-wide new diagnosis rate dropped steadily to a low point of 41.2 per 100,000 residents. Washington reached that low point three times between May 18 and May 25. But as most of the state has progressed into Phases 2 and 3 of the Governor’s reopening plan, the state-wide new diagnosis rate has steadily increased since the May 25th low point. As of June 18 (currently the latest date for which data is reported on the dashboard as of this writing), the state-wide new diagnosis rate is back up to 62.0 new cases per 100K. These increased rates have been driven largely by recent spikes in the several counties that are still in Phase 1, including Yakima County (662.2 new cases per 100,000 residents), Benton County (222.0 new cases per 100,000 residents), and Franklin County (530.2 new cases per 100,000 residents). However, spikes in the new diagnosis data are not limited to the Phase 1 counties. For example, the most recent data for Columbia County, which has already entered Phase 3, currently shows 168.3 new cases per 100,000 residents. [All new diagnosis data obtained from the Governor’s COVID-19 Risk Assessment Dashboard on June 25, 2020].
The Health Secretary’s Response to Recent Spike in New Cases
Most of the government’s response to the coronavirus pandemic in Washington State has been accomplished through Gubernatorial proclamations issued under the authority of RCW 43.06.220 (State Emergency – Powers of governor pursuant to proclamation). But Washington’s legislature also provided the Secretary authority to take actions to control and prevent the spread of dangerous, contagious, and infectious diseases in a time of emergency. See RCW 43.70.130(7) (investing the secretary of health with “the same authority as local health officers…when in an emergency the safety of the public demands it”); RCW 70.05.070(3) (providing that the “local health officer…shall…[c]ontrol and prevent the spread of any dangerous, contagious or infectious diseases that may occur within his or her jurisdiction”); WAC 246-100-036 (regulations regarding “Responsibilities and duties” of “Local health officers”). Invoking this authority, the Secretary issued Secretary’s Order No. 20-03 requiring “Face Coverings – Statewide” (the “Face Coverings Order”) effective June 26, 2020.
The Face Coverings Order sets forth detailed rules that I will not fully-explain here. You can click here to review the order in full.
The Order includes four basic parts: (1) a mandate for wearing face cloth face coverings in “public settings,” (2) a description of the circumstances under which individuals are permitted to remove their face coverings in public settings, (3) a list of individuals who are exempt from the face coverings requirement, and (4) a description of the characteristics of the required face coverings. These rules take effect on June 26, 2020 and will remain in effect until rescinded or superseded by the Secretary or until the Governor declares the end of the State of Emergency.
1. The Face Covering Mandate
The Face Coverings Order provides that “Every person in Washington State must wear a face covering that covers their nose and mouth when in any indoor or outdoor public setting.” While the term “public setting” is not fully defined, the Secretary clarified that it includes, but is not limited to:
- Inside any building…that is open to the public;
- In all “healthcare settings”;
- When using public transportation, including when both waiting for (i.e., at bus/train stops) and riding public transportation, or other vehicles for hire; and
- “In outdoor public areas…when a distance of at least six feet cannot be maintained from any non-household member.”
2. When Masks can be Removed in a Public Setting
The Secretary’s Order provides several exceptions when masks can be removed in a public setting. These include:
- While “seated” and/or while eating at a restaurant or other establishment that offers food or beverage service, provided that you are able to maintain a distance of at least six feet from guests seated at other tables;
- While engaged in exercise activities, provided that social distancing is maintained – this does not appear to modify the Governor’s guidance applicable to team sports, which I discussed in a prior blog entry;
- While in outdoor public areas, provided that social distancing is maintained with non-household members;
- When not wearing a mask is essential to communicating with an individual who is deaf or hard of hearing;
- While obtaining a service that requires temporary removal of the face covering (g., while be treated by a dentist, etc.);
- While sleeping;
- When necessary to confirm the individual’s identity; and
- When federal or state law prohibits wearing a face covering or requires the removal of a face covering.
The Secretary has exempted certain children (see the Order for specifics regarding the child exemption) and “Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering.”
4. Characteristics of a Required Face Covering
The Secretary is not requiring any particular type, brand, or model of face covering. The main requirements are that the face covering must be “cloth” and it must “cover the nose and mouth.” Beyond those requirements, individuals are free to buy commercially available face coverings or to make their own covering from household items, including “a variety of materials, such as fleece, cotton, or linen.” The face covering can also be the style that is secured with straps or ties behind the ears or head (such as most of those masks you’re probably seeing advertised all over social media) or a piece of cloth that is wrapped around the head (such as a bandana).
Enforcement and Potential Criminal Penalties
While it is unclear how and to what extent the Face Covering Order will be enforced, the Order provides that violators may be subject to criminal penalties pursuant to (among other authorities) RCW 70.05.120(4) (providing that “[a]ny person . . . violating or refusing or neglecting to obey any of the . . . orders made for the prevention, suppression and control of dangerous contagious and infectious diseases . . . is guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine of not less than twenty-five dollars nor more than one hundred dollars or to imprisonment in the county jail not to exceed ninety days or to both fine and imprisonment”).
At Beresford Booth, we actively monitor the ever-changing legal landscape in light of COVID-19. We encourage you to continue to regularly check our website for discussions on the latest legal changes surrounding the current environment. If you have more questions pertaining to your specific situation, we remain available to take your calls, emails, or in-person appointments.