The Montana Governor announced a directive yesterday ordering mandatory face coverings in certain public settings in Montana.
In summary, the Governor's directive requires that all businesses, government offices, or other persons responsible for indoor spaces open to the public require and take reasonable measures to ensure that all employees, contractors, volunteers, customers, or other members of the public wear a face covering that covers their mouth and nose at all times while entering or remaining in any indoor spaces open to the public. Additionally, the directive requires businesses open to the public to post a sign at all points of entry indicating that a mask or face covering is required for ages 5 and older.
Additionally, the directive requires masks or face coverings to be worn at outdoor activities where social distancing is not possible or observed.
Certainly there are exceptions to the mask requirement: children under the age of 5, people consuming food or drink in a public establishment, people doing strenuous exercise or swimming, people speaking to the hearing impaired, people performing in a theatrical setting when the audience is 6 feet away, people removing their mask for identification, people receiving medical treatment, and people with a medical condition precluding the safe wearing of a face covering.
Within minutes, the strong personalities of Montana have expressed their opinions on what is "legal", "constitutional", "protected", etc. Many are thrilled, many are angry, and many just want to know what their duties are.
So, let's get to the issue: Is the Governor's Directive Unconstitutional? Can it be enforced? What happens if I don't wear one? What if I have a disability?
Here's the summary: The Governor's directive can be found here:
Read it, ask yourself questions, and attempt to understand what it says. The directive may not even apply to you or your situation. If you have a question about whether or not it applies to something you are doing, ask questions. Understand the enforcement allowed under the directive is not first with policing, but rather, education. If someone in your community is providing false information, help educate them.
I hope this information is helpful to those of you trying to sort out the new directive, as I found myself doing yesterday afternoon. If you have questions or concerns about the enforceability of this directive, feel free to ask.
This blog post is for information purposes only, and does not constitute legal advice.
7/16/2020 05:12:19 pm
So, this issue actually came up when visiting a business out of town recently. Can a store (or other business) make you leave if you are not wearing a mask? In most places, the mask requirement is now posted. But even if a sign is (or if it isn’t) posted, can they refuse to serve you or kick you out without one?
7/16/2020 05:31:12 pm
Interesting issue for sure. Now that the mask mandate is an order of the governor, businesses are at risk of enforcement and can make you leave if you’re not wearing one. If they don’t, they could risk enforcement. Of course the exceptions to the mask requirements still apply. Before the governor‘s order, it probably would depend on type of business, etc. Hope that helps answer your question.
Josh Van de Wetering
7/17/2020 07:17:21 am
Businesses following the directive who have a customer who refuses to wear a mask can and should require that customer to leave the business. If the person refuses to leave the person is trespassing, and businesses should call the police. Trespassing is a misdemeanor crime. Incidentally this applies to any other time a customer won't leave a business, like "no shirt, no shoes, no service," or when a bar kicks out an unruly patron.
7/17/2020 08:01:10 am
Thanks for your input, Josh. I tried to stay out of the weeds as to the logistics of each hypothetical, but I agree that businesses are absolutely on the hook for this directive, and should enforce as they see fit to protect themselves.
7/16/2020 06:59:24 pm
While I agree it’s a 10th amendment issue, wouldn’t the directive have to comply with the Montana constitution? I do not see anywhere that allows the governor the authority to mandate masks. I have found laws under MCA that I believe allow the health Dept the authority to control communicable diseases but I have not found anything else beyond that. Thank you for addressing this mandate.
7/16/2020 07:19:20 pm
Great Question. The Governor in MT has relied on MCA 10-3-104, which allows the governor to "control ingress and egress to and from an incident or emergency or disaster area, the movement of persons within the area, and the occupancy of premises within the area." In this case, I would say the governor is relying on his ability to control the occupancy of the persons by ordering them to wear a face covering in a premises. You are correct that there are also specific laws under the MCA providing the Health Dept (or DPHHS) authority. Hope this helps answer your question. Thank you for reading and discussing.
7/19/2020 07:00:48 am
This is really good information, thank you. I think there’s a typo in one of the paragraphs talking about ADA. It says accusation when it probably should say accommodation. Just an FYI.
7/19/2020 09:57:17 pm
I would be curious if the government could enforce a penalty without proof of damages.
7/20/2020 08:38:37 am
Interesting question, Sam. The directive is not clear on penalties, and is pretty vague on enforcement, but I believe most of Montana Law Enforcement have taken more of an “education” rather than “penalty” stance. Hope that helps answer your question. Thanks for reading.
2/6/2021 12:01:04 pm
The Governor's order mandates private business and managers of enclosed spaces to enforce wearing masks or looses their business license. Individuals who won't or can't comply can be charged with trespassing. This dynamic sounds tyrannic.
9/28/2021 06:31:45 am
I want to know who and what defines and determines what a "reasonable accommodation" is for people with disabilities. In Tennessee a federal judge has mandated the Knox county school system must mandate masks over a lawsuit filed by four families who claim that Governor Lee's parent choice to opt out of mask wearing executive order is a violation of the ADA. I do not understand how 4 children and their families having disabilities or are immuno compromised can force 66000 staff and students to wear masks with only a .31% covid case rate. How can a judge force a mask mandate when there is no public health crisis or emergency and the judge is not a medical professional? If a federal judge can determine what people have to do to their own bodies have we lost our freedom? This completely takes away our protections under the constitution and the bill of rights. The rights of 65996 students and faculty are being taken away for 4 individuals who can wear masks to protect themselves if they are at risk. The 65996 staff and students forced to wear masks that are causing more harm than good and are violating their person/bodies. Have we lost all rights to make our own choices?
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