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.
UPDATED January 7, 2022:
County Mask Order and Legal Challenge. Effective January 5, 2022 at 8:30 a.m., the St. Louis County Department of Health issued a new Face Covering Order which requires individuals wear masks in all “indoor and enclosed public buildings and spaces,” with limited exceptions. Soon after the issuance of this order, the Missouri Attorney General, Eric Schmitt, filed a lawsuit seeking to nullify the Order.
City Mask Order. Effective December 23, 2021 and continuing in effect for 30 days, the City of St. Louis issued Health Commissioner’s Order No. 6 requiring the use of face coverings while in indoor and enclosed public buildings, spaces, and on public transportation.
UPDATED December 9, 2021:
Statewide: On November 22, 2021, a judge in the Circuit Court of Cole County issued an order in Shannon Robinson, et al. v. Department of Health and Senior Services, Case No. 20AC-CC99515, finding that Missouri Code of State Regulations 19 CSR 20-20.040(2)(G)-(I), 19 CSR 20-20.040(6), and 19 CSR 20-20.050(3) constitute an unconstitutional violation of separation of powers under the Missouri Constitution. As such, these state regulations (which concern the state health department’s power to take certain actions in response to communicable diseases), and any local orders that rely on these regulations for their authority, were declared invalid. In response, on December 7, 2021, the Attorney General of Missouri sent a letter to Missouri local public health agencies advising them of the Robinson decision and urging them to stop enforcing any such invalid local orders.
On Monday, July 26, 2021, the St. Louis County Department of Health issued a Face Covering Order (the “County Order”). In an effort of regional coordination, the St. Louis City Health Commissioner also issued a Face Covering Order (the “City Order”), which similarly took effect on July 26.
While the language of the orders varies slightly, they generally require individuals, both vaccinated and unvaccinated, to wear a face covering when in “indoor and enclosed public buildings and spaces.” The County Order is effective until amended or rescinded, while the City Order is effective for 30 days.
The County Order clarifies that masking is required in “all indoor and enclosed spaces other than private dwellings or private transportation vessels,” whereas the City Order does not contain any further clarification. Both orders recognize several exceptions, including for individuals with certain disabilities and health conditions, and for individuals actively eating or drinking or receiving services (including religious services) involving the nose or face. Unique to the County Order is an exception for employees alone in a separate room, office, or interior space.
Both orders provide for individual compliance only and do not impose any specific business obligations.
Competing political forces as well as ambiguity of language and authority have created a perfect storm of confusion for St. Louis businesses. Indeed, the Missouri Attorney General has filed a lawsuit alleging both orders are unlawful pursuant to the recently-enacted Mo. Rev. Stat. 67.265, which prohibits political subdivisions from issuing public health orders directly or indirectly restricting access to businesses and other venues for more than 30 days and provides for certain oversight by governing bodies of the public subdivisions under that section. Additionally, the St. Louis County Council voted 5-2 to rescind the County Order on Tuesday, July 28, 2021. Following this vote, the St. Louis County Executive Sam Page stated in a press conference he still intends to enforce the County Order.
What does this all mean for St. Louis employers?
- While we wait for the legal issues to shake out, employers should consider taking steps to comply with the orders, pending either a ruling by a court that they are no longer effective or rescission by the issuing bodies.
- There is no specific requirement for businesses to take any action; however, employers may wish to ensure that employees and customers abide by any applicable health orders and guidance – federal, state, and local – to foster a safe workplace.
- Employers should consider the best way to accommodate those employees who may not be able to wear a face covering, such as due to a medical condition.
- Businesses should keep an eye out for developments in the near term, as this situation unfolds.
Missouri businesses should note that Kansas City also has announced its intention to issue a renewed face covering order effective Monday, August 2, 2021. Furthermore, all business should be aware the U.S. Centers for Disease Control and Prevention issued updated guidance recommending that all people, regardless of vaccination status, wear face coverings when in public indoor settings in geographic areas with substantial or high transmission as covered in this Littler publication. (Both the St. Louis and Kansas City metro areas currently are experiencing high transmission.)
Employers with specific questions about the County Order, City Order, or other COVID-19 issues should consult with experienced employment counsel to navigate their compliance obligations.