Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
At their first meeting of the new year, city councilors in Portland, Maine repealed a COVID-19 emergency order that had been in place since March of 2020, thereby terminating a short-lived hazard pay provision. During the January 3, 2022 session, councilors also unanimously adopted a mask mandate for almost all public buildings.
Hazard Pay Ending After Brief Enactment
At their prior meeting on December 20, 2021, city councilors debated repealing the existing emergency order, but instead voted to table the discussion, which left the order in place until their January 3, 2022 meeting. The city council’s inaction triggered the January 1, 2022 implementation of a hazard pay requirement, which raised the city’s minimum wage to $19.50 per hour for a broad swath of covered employees.
The repeal of the emergency order, however, will not take effect for 10 days. Thus, covered employers must continue to pay hourly employees at least $19.50 per hour from January 1 through January 13, 2022. Per the city’s minimum wage ordinance, this includes full-time, part-time, seasonal, and temporary workers “who perform work for an Employer for monetary compensation within the municipal limits of the City.” The only exception is for employees “under a teleworking arrangement.”
Once the emergency order officially expires, the city’s minimum wage will revert to $13.00 per hour. This also means the minimum wage for tipped workers will drop to $6.50 per hour before tips.
Mask Mandate Begins Almost Immediately
Despite lifting the COVID-19 emergency order, the council implemented an emergency mask mandate in a 9-0 vote that takes effect on January 5, 2022.
The mask mandate, which amends Sections 1-134 to 17-143 of the Portland City Code, requires that face coverings be worn by all individuals—including employees, customers, visitors, licensees, and contractors—in a “Public Building.”
“Public Building” means any building in the city open to the general public except:
a private residence or residential unit, a public pre-school or K through 12 school (which remains under the authority of the Board of Public Education), a church or other house of worship, office space where the occupant(s) can be physically separated from the general public, or the portions of a theater, gym, or athletic arena where all of the individuals performing, exercising, or playing have been vaccinated and where there is either space, a physical barrier, or ventilation system separates them from the general public or audience.
The mask mandate also applies to public transportation and ride-sharing services.
The mandate, however, does not apply to businesses that have implemented their own COVID-19 vaccine mandate. The new ordinance states that masks are not required for:
[a]ny Person entering a business, or a portion of a business, located within a Public Building, including but not limited to retail, food and beverage, gym, theater, or similar high-traffic business, which actively screens and limits who may enter its premises to only Persons with established proof of vaccination for the COVID-19 Virus . . .
The ordinance provides exceptions for children under age two, persons alone in a public building, and those with a medical condition that prevents them from wearing a mask. Masks are also not required while eating or drinking in bars and restaurants “at an isolated location, such as a table or booth.”
Although the mask mandate takes effect on January 5, 2022, businesses must post signage by January 10, 2022 stating that “Persons entering are required to wear face coverings by order of the Portland City Council.”
The mask mandate contains a provision requiring the city council to review the necessity of the ordinance every 30 days. It also provides the city manager with the power to suspend enforcement of the mandate at any time should the seven-day average of new COVID-19 cases for Cumberland County drop to a “moderate” level as defined by the U.S. Centers for Disease Control and Prevention for 10 consecutive days.
Violations of the mask mandate can result in fines between $100 and $500 per occurrence as well as the potential for civil action by the city’s local health officer.
Given the rapidly changing developments in Maine’s largest city and potential revisions to the mask mandate every 30 days, employers operating in Portland may want to consult with counsel to ensure compliance with state and local laws.