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.
FURTHER UPDATED August 23, 2021: On August 19, 2021, the St. Louis County Circuit Court issued a Court Order entering a preliminary injunction against the St. Louis County Department of Public Health and County Executive, enjoining them from taking any action to enforce the County Mask Order. The previously-issued TRO expired on August 17, 2021. Accordingly, there continues to be no face covering order in effect in St. Louis County. The City Order remains in effect until August 25, 2021, subject to extension.
UPDATED August 3, 2021: The County Order has been enjoined by the St. Louis County Circuit Court through August 17, 2021. As a result, there is officially no face covering order in St. Louis County – at least for the time being. In another legal “shake about,” a St. Louis County judge granted the Temporary Restraining Order (“TRO”) sought by the Missouri Attorney General, finding the St. Louis County Council had the authority to terminate the County Mask Order with its July 28, 2021 vote. The judge noted her decision was based solely on her interpretation of the law and not a political opinion. The issue will be reviewed once again during a preliminary injunction hearing on August 17, 2021. Please note that this TRO has no impact on the City Order, which remains in effect at this time.
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 The County Order is effective until amended or rescinded, while the City Order is effective for 30 days.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.