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Yesterday, Ohio announced that face coverings will be required at all times when out in public in seven surging counties—Butler, Franklin, Hamilton, Huron, Montgomery, Trumbull, and my county, Cuyahoga. The mandate applies as long as a county remains designated a Red Alert Level 3 Public Health Emergency county per the state’s new tiered Public Health Advisory System, and requires facial coverings:

In any outdoor public space when a person is unable to maintain physical separation of not less than six feet from others who are not members of the person’s household. In any indoor space open and accessible to the public, including while waiting in line to enter such indoor space.

Inside any public transportation and any ride-share vehicle when it is not possible to maintain physical separation of not less than six feet from others who are not members of the person’s household.

Ohio’s mandate takes effect at 6 p.m. today.

Similarly yesterday, Cuyahoga County proposed its own rule that would also require people to wear face coverings in the same places, regardless of whether the county is designated Red Alert Level 3.

That, however, is where the similarities end.

Ohio’s rule has limited exceptions, including children under the age of 10 or any other minor who cannot safely wear a face covering, when a physician advises against a person wearing a mask, if wearing a mask is prohibited by federal regulation, if communicating with the hearing impaired, and when alone in an office or personal workspace.

Cuayhoga County’s proposed rule’s voluminous and broad exceptions swallow the mandate. Its face-covering requirement would not apply to:

  • Persons under the age of six;
  • Persons with a medical condition or developmental disability that prevents them from wearing a face covering;
  • Religious facilities;
  • Restaurant and bar patrons while seated at his or her table or at the bar while eating or drinking;
  • Persons in a school setting in compliance with any regulations or requirements of a school district;
  • Where it is not practicable or feasible to wear a face covering such as when receiving dental services, medical treatments, or while swimming;
  • Persons walking or exercising outdoors so long as physical separation of not less than six feet is maintained, or while walking or exercising outdoors with other members of the same household;
  • Persons engaging in exercise in a gym or other similar indoor facility so long as physical separation of not less than six feet is maintained and the individual wears a face covering at all times when not actually engaged in exercising;
  • Persons in their work office, conference room, or other workspace not intended for use by the general public;
  • Persons inside a personal or commercial vehicle either parked or moving that is not a vehicle being used for public transit;
  • Persons while acting in their official capacity as a public safety employee or emergency responder when wearing a face covering would interfere with or limit their ability to carry out their official duties or functions, including peace officers, firefighters, and other public safety or emergency medical personnel that support public safety operations; and
  • Persons complying with the directions of public safety employees or emergency responders.

The law also would not apply if a municipality within the county “opts out” through its own enacted legislation. Given how politicized this issue has become, it would not surprise me in the least to see some cities opt out.

Moreover, if you can manage to violate the county’s proposed rule without one of the gaping exceptions saving you, what’s the potential penalty? A written warning for the first violation, and a civil penalty of $50 for each subsequent violation. That’s it. Compare that non-penalty to Ohio’s face-covering rule, violations of which are criminally punished as misdemeanors.

These rules are a long time coming. Had they been enacted nationwide three months ago, I do not believe we’d be in the dire straights in which we find ourselves. Further, I wish Governor DeWine would have made the mandate statewide, instead of county-by-county. For example, I live in a masked county but my kids go to school in a non-masked county. And while masks will be mandatory on campus when my kids return in August, people who live in that county won’t have to wear them off campus.

Masks save lives. The science is indisputable at this point. Do your part. Law or no law, mandate or no mandate, wear a mask in public spaces. It’s the correct thing to do. It’s the unselfish thing to do. It’s the human thing to do.

This post originally appeared on the Ohio Employer’s Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at jhyman@meyersroman.com, via telephone at 216-831-0042, on LinkedIn, and on Twitter.

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