The New Statewide Mask Requirement in Washington State – What is a Business to Do?

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Beginning Friday, June 26, 2020, face coverings are required statewide in Washington State in indoor public settings and outdoor public locations where six feet of distancing cannot be maintained.  The last section of this post addresses what this requirement means for your business.

 

King County started it all in May 2020 when it issued a face covering directive for its residents.  A number of other counties around the state promptly followed suit.  Earlier this month, Governor Jay Inslee then issued a face covering directive for all workplaces in Washington State, requiring employees to wear face coverings and employers to provide them.  Then, with COVID-19 cases spiking in Yakima County, Governor Inslee recently raised the ante by not just issuing a directive requiring face coverings in indoor public settings and outdoor public locations for that county, but also requiring business owners to enforce the requirement.  Now, with an uptick of new COVID-19 cases across Washington State as the state reopens, the state has made the face covering requirement statewide.

While announced publicly by Governor Inslee during his COVID-19 press conference on June 23, 2020, the actual, written order was formally issued by the state Health Secretary, John Wiesman, on the afternoon of June 24, 2020.  This post summarizes the specifics of that order. It also addresses the question many business owners are asking me – Do I have to require customers coming into my business to wear masks?

The Requirements

You must wear a cloth face covering in the State of Washington when in any indoor or outdoor public setting. The order does not define what an “indoor or outdoor public setting” is, but it provides a number of illustrative examples, which include:

  • Inside any building, including any business, that is open to the public;
  • In healthcare settings, including a hospital, pharmacy, medical clinic, laboratory, physician’s or dentist’s office, veterinary clinic, or blood bank;
  • While in line waiting for or riding on public transportation, or while riding in a taxi, private car service, ride-sharing vehicle, or other for hire vehicle; and
  • In outdoor public areas, including public parks, trails, streets, sidewalks, lines for entry, exit, or service, and recreation areas, when a distance of at least six feet cannot be maintained from any non-household member.

A cloth face covering is fabric that covers your nose and mouth.  It can be a sewn mask with ties or straps that go around your head or behind your ears.  It can also be several layers of fabric tied around your head.  You are discouraged from using N95 and other medical-grade respirators and surgical masks in order to preserve availability for health care workers and first responders.

Children in childcare facilities and K-12 public and private schools may use face shields as an alternative to cloth face coverings if authorized pursuant to an order from the Governor.

The Exceptions

You do not need to wear a face covering in your home when you are only with people in your household, or when you are alone in your car.  This is because you are not in a public setting.

There are a number of circumstances where you may remove your face covering when in public settings. These circumstances include the following:

  • While seated at a restaurant or other establishment that offers food or beverage service while you are eating or drinking, as long as you are able to maintain distance of at least six feet from guests seated at other tables;
  • While engaged in indoor or outdoor exercise activities (like walking, hiking, biking or running) as long as you maintain a distance of at least six feet from non-household members; this does not apply to team sports which are governed by the team sports requirements issued by the Governor;
  • While in an outdoor public area, as long as you maintain a distance of at least six feet from non-household members;
  • When any person to a communication is deaf or hard of hearing and not wearing a face covering is essential to communication;
  • While obtaining a service that requires temporary removal of your face covering;
  • While sleeping;
  • When necessary to confirm your identity; and
  • When federal or state law prohibits wearing a face covering or requires the removal of a face covering. 

The Exemptions

Certain individuals are exempt from the requirement to wear a face covering.  Children younger than five years old are exempt, although the Health Secretary strongly recommends that children who are two, three or four years old, with the assistance and close supervision of an adult, wear face coverings when in settings such as grocery stores where non-household members could come into close contact.

People with medical conditions, mental health conditions, and disabilities that prevent wearing a face covering are also exempt from the requirement.  Such conditions include medical conditions for which wearing a face covering could obstruct breathing, and disabilities and conditions which render a person unable to remove a face covering without assistance.

Other Face Covering Requirements

Many counties, including Jefferson, King, Kittitas, San Juan, Spokane, Thurston, Whatcom, and Yakima, have their own face covering directives.  The Health Secretary’s order preserves the requirements of these county orders to the extent they do not conflict with his own order.  In addition, where a county face covering directive may order a more protective requirement than the Health Secretary’s order, the more protective local requirement must be followed.  For example, the Health Secretary’s order allows you to remove your face covering in outdoor public settings if you are able to maintain a distance of six feet from non-household members.  If a county directive requires you to wear a face covering in outdoor public settings at all times, without exception for physical distancing, then you have to follow the county order because it is more protective than the Health Secretary’s order.

The Penalty

Unlike most county health directives, the Health Secretary’s statewide directive carries a stick of criminal liability for failure to comply.  A willful violation is a misdemeanor and those who fail to wear face coverings when required are subject to criminal prosecution and penalty.

With that said, here is what the Health Department advises you to do if you see someone not wearing a face covering where they should be:

“Nothing. Some people have conditions or circumstances that would make wearing a cloth face covering difficult or dangerous. Just wear your face covering and stay six feet away.”

What This Means for Your Business

Business owners are asking three questions about face coverings:

  • Do I have to require that my customers wear face coverings when inside my business, and do I have to enforce that requirement?
  • How do I best manage my risk of liability for an exposure that could come from a COVID-19-positive customer?
  • Will I be liable for such an exposure if I don’t require all customers to wear face coverings or, if I do, but don’t enforce the requirement?

Science, literature, and legal requirements concerning face coverings have come a long way in the past month, and with those rapid developments have come changes in what I now see as “best practices” and the “standard of care” on face coverings.

Governor Inslee previously directed Washington businesses to require employees to wear face coverings in the workplace and employers to provide their employees with face coverings to wear in the workplace.  That same directive encourages, but does not require, employers to require non-employees in the worksite to wear face coverings.  For more on employer mask requirements, click here.

In his directive requiring face coverings in Yakima County, Governor Inslee proclaimed that no business may operate, allow a customer to enter, or conduct business with a customer unless the customer is wearing a face covering.  This is similar to the San Juan County face covering directive in that it puts the onus on the business owner to enforce the face covering requirement within its establishment.  In those two counties, the picture is very clear as to what businesses must do by way of customer face coverings.  Business owners are essentially put in charge of enforcing face covering requirements inside their businesses.  Those businesses that fail to enforce the rules could suffer fines or loss of their business licenses.  In turn, the legal requirement, best practices, and the standard of care are determined by these county directives.

Outside Yakima and San Juan Counties, the answers are not so clear.  Neither the Governor nor the Health Secretary’s statewide face covering order expressly goes so far as to direct business owners to enforce the face covering requirements.  Therefore, outside Yakima and San Juan Counties, the answer is “no” to the question of whether a business owner will “break the law” by not requiring customers to wear face coverings.

The analysis does not end there, however; for that only answers the first question.  There are risk management reasons – the second and third questions – that should persuade a business owner to go further than just not “breaking the law.”  And this is where concepts such as “best practices” and “standard of care” come into play.  These concepts are not necessarily coextensive to what a statute, rule, order or directive may or may not require.

“Best practices” are generally considered the most effective or prudent course of action, or the best way to accomplish something.  The “standard of care” is generally a lower standard than best practices.  The standard of care is the degree of prudence and caution required of someone who owes a duty of care.  Or stated more lawyer-like, the standard of care is the reasonable degree of care a person should provide to another person under the circumstances.  Requirements set by statute, rule, order or directive are generally considered “minimum standards” with which every business must comply.  In many cases, best practices and the standard of care are higher standards.

In the risk management context, the questions for each business to grapple with are what are best practices and what is the standard of care for a business when it comes to customer face coverings?  These are questions where, in my view, the answer is not found in the Health Secretary’s statewide order requiring wearing of face coverings.

Many recent science and health statements proclaim the benefit of face coverings and the necessity of wearing face coverings to slow the spread of COVID-19.  Those statements, together with the increasing momentum of legal requirements for face coverings, likely establish the current (yet still evolving) views on best practices and the standard of care for businesses on customer face coverings.  Given the growing scientific literature and trending legal requirements promoting the need for face coverings, best practices and the standard of care likely now call for businesses to require customers (and everyone else) to wear face coverings.  Indeed, many businesses, like Costco, already require customers to wear masks, and that fact, by itself, may be sufficient to establish the current best practices, and maybe even the standard of care on which business owners could face liability.

In general in the current climate, a business owner, who is faced with a lawsuit by an employee or customer suing for COVID-19 exposure that can be proved to have occurred in the business, would be hard-pressed to defend a position of not requiring everyone to wear face coverings inside the business premises if the virus-carrying person and/or the infected plaintiff neither wore a mask nor was required to wear a mask.  Our recommendation, from purely a legal perspective that puts aside the social, moral and political debates now raging over mask requirements:  All businesses should require all customers (as well as employees and others) to wear face coverings as a condition to entry and service. I believe it is fair to conclude that both best practices and the standard of care call for businesses to require customers to wear masks, and then to proactively enforce that requirement by denying entry of and service to the customer without a face covering.

Of course, best practices and the standard of care would both except and exempt from their application those circumstances and people not covered by the Health Secretary’s requirements.


Helsell Fetterman LLP closely follows Governor Inslee’s proclamations, guidance, and statements on reopening business in Washington and we are available to advise and assist you in tailoring your reopening and operations to meet these evolving standards.  For further information or assistance, please contact Scott Collins (scollins@helsell.com).


About the Authors

Scott Collins

As managing partner of Helsell Fetterman since 2001, Scott Collins understands the operational aspects of business and how legal issues must be addressed within greater business considerations. Utilizing that perspective, he provides clients with cost-effective legal counsel achieving practical results that serve their business goals.

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