On September 22, Governor Evers declared a new public health emergency in response to the increase in COVID-19 cases in Wisconsin. Executive Order #90 proclaims a new public health emergency, effective immediately and remaining in effect for 60 days, or until revoked by the Governor or by joint resolution of the Legislature. Litigation is ongoing regarding the public health emergency declared on July 30^th and litigation is anticipated regarding declaration of this new public health emergency.

Under this new public health emergency, effective immediately, Governor Evers issued Emergency Order #1, requiring face coverings be worn by “every individual, age five and older” when the individual is indoors or in an enclosed space other than a private residence. Individuals may remove the face covering in the following situations:

• While eating or drinking.
• When communicating with an individual who is deaf or hard of hearing and communication cannot be achieved through other means.
• While obtaining a service that requires the temporary removal of the face covering, such as dental services.
• While sleeping.
• While swimming or on duty as a lifeguard
• While a single individual is giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience, the single speaker may remove the face covering when actively speaking. While the face covering is removed, the speaker must remain at least 6 feet away from all other individuals at all times.
• When engaging in work where wearing a face covering would create a risk to the individual, as determined by government safety guidelines.
• When necessary to confirm the individual’s identity, including when entering a bank, credit union, or other financial institution.
• When federal or state law or regulations prohibit wearing a face covering.

The order is enforceable by civil forfeiture of not more than $200. The order supersedes any less restrictive local order; local governments may issue more restrictive orders.

Republican legislators, including Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos, decried the extended mandate and publicly questioned the legality of the public health emergency and subsequent order. Instead, it seems that legislative leaders are going to allow the courts to decide if the public health emergency and mask mandate can continue.

The Wisconsin Institute for Law & Liberty (WILL) already filed a lawsuit on the governor on the July 30 emergency order that set the first mask mandate in Polk County Circuit Court. WILL’s lawsuit challenges the governor’s power to utilize emergency powers for the same public health crisis. On September 28, WILL sought an injunction to immediately end Wisconsin’s mask mandate.

This new face coverings requirement is slated to expire on November 21, 2020, or by subsequent superseding emergency order. The previous statewide mask requirement is scheduled to expire on September 28.