On June 24, 2020, Governor Cooper issued Executive Order No. 147, extending Phase 2 and placing new restrictions to further combat the pandemic’s spread.  Failure to comply with these new restrictions can shut down your business, service, or operation, as well as subject it to both criminal or civil liability.  In this article, we summarize what the extension means for your business, your employees, and your customers. 

Definition of Face Covering and Surgical Mask

A “face covering” is anything that wraps around the lower face.  For example, improvised items like scarfs, bandanas, t-shirts, and towels may act as a face covering.  “Surgical masks” are American Society for Testing and Materials (“ASTM”) Level 1, 2, or 3 approved procedural and surgical masks.

What are the New Requirements?

Much has remained the same under the new Order.  All businesses, even personal care, grooming, and tattoo businesses, are still required to follow the operating requirements implemented before the extension.  Essential businesses and health care services still benefit from limited immunity from COVID-19 related claims.  Here’s what has changed:

Employees.  All employees must wear a face covering when they are within six (6) feet of another person.  This applies to employees for the following businesses, services, or operations:

  • Retailers and restaurants;
  • Personal care, grooming, and tattoo businesses;
  • Child care facilities;
  • State agencies;
  • Public and private commercial transportation services, including airports, buses, ride-shares, cabs, and shuttles; and
  • Certain manufacturing, construction, and agriculture operations within certain sectors as defined by the North American Industry Classification system.

Employees of long-term care facilities must wear surgical masks while inside the facility, and employees for poultry processing plants must wear surgical masks when they are within six (6) feet of another person. 

Customers.  Customers for restaurants must wear a face covering when not at a dining table.  Customers for retailers must wear a face covering while inside the store and within six (6) feet of another person.  This is also required for customers for personal care, grooming, and tattoo businesses, unless they are receiving a service to the lower part of their face. 

What are the Exceptions?

Although important to fight the spread of COVID-19, these requirements do not apply to any employee or customer who has claimed or provided notice that they:

  1. Have a medical, behavioral condition or disability;
  2. Are under eleven (11) years old;
  3. Are drinking or eating;
  4. Are exercising;
  5. Are communicating in a way that requires the mouth to be visible;
  6. Are giving a speech;
  7. Are working at home or are in a personal vehicle;
  8. Are removing their face covering for government or medical services or identification;
  9. Would be at risk from wearing a face covering at work as determined by regulations or workplace guidelines;
  10. Have found that wearing a face covering impedes their visibility to operate equipment or a vehicle; or
  11. Are a child whose caretaker could not safely place the face covering on the child’s face.

Employees and customers are on the honor system: they should tell the truth but need not provide any proof for an exception.  Further, businesses, agencies, and operations have the right to rely on their employees’ and customers’ representations.  Yet, if a business or operation fails to ask or have notice of an exception, they may be subject to civil or criminal liability.

Individual Liability for Violating the New Requirements

Although businesses and operations can be subject to a $1,000 fine and forced closure, the Order is not intended to subject individuals to liability.  Police cannot enforce these requirements against individual persons.  Employees and customers may be subject to trespassing law and forced removal by police if they are refusing to leave when asked. There’s only one exception to this: patrons of public transportation services cannot be removed or denied for not wearing a face covering.

If you have specific questions regarding your business, service, agency, or any other commercial operation, we welcome you to contact the Business Law, Employment Law, Municipality Law, or Retail, Restaurant, & Hospitality practice group at CSH Law.    

This publication was prepared with the assistance of one of our Summer Clerks, Le Ho.   Le is a law student at the University of North Carolina School of Law and will be graduating in May 2022.