What Omaha Employers Need to Know About the New Mask Mandate

On August 11^th, Omaha’s City Council unanimously passed an emergency ordinance that places minimum requirements on when and where individuals must wear masks when entering premises around the City.  In addition to placing a legal duty on the general public to wear masks, the ordinance also places a duty on individuals and entities – including employers – to require individuals (including employees, customers, and visitors) to wear masks while inside their premises.

In order to comply with the new requirements, employers should know the following ordinance provisions:

1. The Ordinance Covers Virtually All Premises Other Than Private Residences. The ordinance requires individuals to wear face coverings in “premises that are open to the general public.”  The City broadly defines such premises to include “entities that employ or engage workers.”  This includes business establishments, private clubs, religious buildings, educational institutions, daycare facilities, vehicles used for transit or business purposes, and any other place generally open to the public.
2. You Must Post Notice of the Mask Requirement. Anyone maintaining a public premise must post one or more signs visible to workers, customers, and visitors instructing them to wear face coverings.  The City of Omaha has a sample poster on its website, which you can find here.
3. Masks Are Not Required if Social Distancing Is Maintained. Individuals are not required by the ordinance to wear a mask if they maintain a minimum of six (6) feet of separation at all times from anyone who is not a member of their household.
4. The Mask Requirement Does Not Apply to Individuals Engaged in Specific Actions Inside a Premise. Anyone maintaining a public premise does not have to require an individual to wear a face covering if the individual:
   • Is seeking federal, state, county, or city governmental services;
   • Is seated at a bar or restaurant to eat or drink, or while immediately consuming food or beverages;
   • Is engaged in an occupation that prevents the wearing of a face covering;
   • Is obtaining a service or purchasing goods or services that requires the temporary removal of the face coverings;
   • Is asked to remove a face covering to verify an identity for lawful purposes;
   • Is providing a speech, lecture, or broadcast to an audience, so long as he or she is at least six (6) feet apart from other individuals; or
   • Cannot otherwise wear a face covering because of a medical condition, mental health condition, or other disability.
5. Other Exceptions to the Mask Requirement. The mask requirement also does not apply to:
   • Children under the age of five (5);
   • Individuals who are alone in an office, room, vehicle, cab of heavy equipment, or any other enclosed work area;
   • Individuals who are seated at a desk or standing stationary work station so long as an immovable Plexiglas or plastic barrier is installed around them (presumably, a solid barrier constructed of other materials would also suffice);
   • Individuals officiating a religious service;
   • Individuals communicating with other individuals who are deaf, hard of hearing, or have some other disability or condition that makes communication with that individual difficult while wearing a mask;
   • Individuals for whom wearing a face covering would create a job hazard for the individual or others, as determined by federal, state, or local regulators or workplace safety and health standards; and
   • Individuals who are exercising in an indoor business or indoor space such as a gym or fitness center so long as they remain, at minimum, six (6) feet apart from other individuals at all times.
6. Employers Are Not Required to Provide or Pay For Masks. As we discussed in our May 12, 2020 article “What Employers Need to Know About Face Masks and Coverings“, face masks are not considered “personal protective equipment” because they are intended to protect others and not the employee from exposure to coronavirus.  Therefore, neither federal nor Nebraska law require an employer to provide or pay for face masks.  Nothing in the new Omaha ordinance changes that.

Remember, this ordinance only provides the minimum mask requirements for anyone maintaining public premises.  Those in charge of the premises may implement a more restrictive face covering policy than is provided by the ordinance.

Failure to abide by the mask ordinance is a misdemeanor crime which carries a $25 penalty.  Each instance of violation may be considered a separate criminal offense.

This ordinance is set to remain in effect through September 15, 2020 unless the City Council decides to extend the duration of these requirements.  For now, we encourage employers and individuals to stay safe and comply with the new mandates.