COVID-19 UPDATE: Governor Sununu Orders State-Wide Mask Mandate

Citing a growing number of COVID-19 cases and hospitalizations in New Hampshire over the last several weeks, Governor Chris Sununu has issued a state-wide mask mandate.  Pursuant to Emergency Order 74, effective November 20, 2020, through January 15, 2021, “all persons over the age of 5 within the State of New Hampshire shall wear a mask or cloth face covering over their noses and mouths any time they are in public spaces, indoors or outdoors, where they are unable to or do not consistently maintain a physical distance of at least six feet from persons outside their own households.”

For purposes of the Order, the term “public spaces” includes any part of private or public property that is generally open or accessible to members of the general public. Public spaces include but are not limited to, lobbies, waiting areas, outside plazas or patios, restaurants, retail businesses, streets, sidewalks, parks, beaches, elevators, restrooms, stairways, parking garages, etc.

The Order is not intended to override any provisions related to the wearing of masks and cloth face coverings that are contained within industry-specific guidance that is part of Exhibit B to Emergency Order 52 (the “Universal Guidelines for All New Hampshire Employers and Employees”).  Additionally, nothing in the Order is intended to prevent municipalities from enacting their own ordinances that contain stricter provisions for wearing face masks or cloth coverings than those in the Order.

Notably, there are several exceptions to the mandate.  For example, the Order shall not apply to:

  1. Educators, students, and staff within K-12 schools;
  2. Any person with a medical condition or disability that prevents wearing a mask or other face-covering;
  3. Any person consuming food or drink or sitting at a restaurant or table to eat or drink;
  4. Any person engaged in physical strenuous physical activity;
  5. Any person giving a religious, political, media, educational, cultural, musical, or theatrical presentation or performance for an audience;
  6. Any person who is deaf or hard of hearing, and any person while communicating with an individual who is deaf or hard of hearing or who has a disability, medical condition, or mental health condition that makes communication with that individual while wearing a mask or face covering difficult;
  7. Any person obtaining or providing a service that requires the temporary removal of a mask or face covering;
  8. Any person asked to remove a mask or face covering to verify an identity for lawful purposes; or
  9. Any public safety worker actively engaged in a public safety role and when a mask or face covering would seriously interfere in the performance of their public safety responsibilities.

Further, any person who declines to wear a mask or cloth face covering because of a medical or developmental issue, or difficulty breathing, shall not be required to produce documentation or other evidence, verifying their condition.

Due to the exceptions for medical conditions and disabilities that may prevent someone from wearing a face covering, it is important that businesses follow the requirements of the Order and consider other applicable laws, such as the Americans with Disabilities Act of 1990 and New Hampshire’s Law Against Discrimination to determine whether a reasonable accommodation can or should be made for someone who declines to wear a mask or cloth face covering.  Reasonable accommodations can take many forms, such as no-contact alternatives and curbside pick-up for customers in retail settings.  It is also important to remember that guidance from the Centers for Disease Control and Prevention (CDC) makes clear that a business does not need to allow an unmasked member of the public if it creates a health and safety risk.

It is imperative that businesses stay up-to-date with their legal obligations as the COVID-19 pandemic continues into the future and as federal, state, and local requirements evolve.

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