New Developments: Hazard Pay and Mask Mandate in Portland

The current $19.50 minimum wage will last until January 13, 2022, after which it will return to $13.00. Face coverings will also be required for most persons entering public buildings beginning January 5, 2022, under the City of Portland’s new face covering mandate.

UPDATE:

On Monday, January 3, 2022, the Portland City Council met to discuss Portland’s state of emergency order and voted 8-to-1 to lift the state of emergency order. The lifting of the emergency order is significant because in November 2020, voters in Portland passed a referendum to increase the city’s minimum wage and required so-called hazard pay at a rate of one and a half times the regular minimum wage for all periods in which there is an emergency declaration by the city or the State that applies to the workplace.

The emergency-pay provision took effect on January 1, 2022, requiring all businesses in Portland to pay a minimum wage of $19.50 per hour for the duration of the state of emergency. The lifting of the state of emergency order does not immediately end the effectiveness of the state of emergency. Rather, the state of emergency order remains in effect until January 13, 2022.

The City Council also voted to implement a public face covering mandate. Persons (ages 2+) must wear masks when inside public places in Portland as of Wednesday, January 5. However, entities that require proof of vaccination to do not need to require masks be worn.

What Does This Mean for my Business Today?

This means that until January 13, 2022, when the state of emergency by the City of Portland’s repeal of the state of emergency takes effect, covered businesses must pay eligible employees a minimum hourly wage of at least $19.50 per hour for all work performed during that period of time. For tipped employees, the rate of pay is $9.75 per hour for that same duration. After January 13, 2022, the minimum wage in Portland will return to $13.00 per hour and $6.50 per hour for tipped employees, which are the new minimum wages as of January 1, 2022.

What Does This Mean Going Forward?

After January 13, 2022, the required so-called hazard pay of a rate of one and a half times the regular minimum wage will no longer be in effect. However, if another emergency order is entered, whether by the City of Portland or the State, the City of Portland’s minimum wage once again will be calculated at one and a half times the regular applicable minimum wage at the time of the emergency order.

What is Required Under the Public Face Covering Mandate?

Beginning January 5, 2022, all persons (ages 2+) must wear a face covering, defined as any cloth or tightly woven fabric that can be worn on an individual’s face over their nose and mouth and substantially complies with the United States Center for Disease Control’s recommended guidance for masks, any time they are in a public building or using public transportation within Portland.

A public building means any building or portion of a building within Portland that is regularly accessible to the general public.

A public building does not include a private residence, a public pre-school or Kindergarten through 12th grade school, places of worship, office space where occupants can be physically separated from the general public or portions of a theater, gym, or athletic arena where all of the individuals performing, exercising, or playing have been vaccinated and where there is either space, a physical barrier, or ventilation system separates them from the general public.

Additionally, beginning January 10, 2022, each public building or separate business within a public building must post signage at the entrance and at other appropriate locations (such as back doors or transaction locations, like registers) stating that persons entering are required to wear face coverings by order of the Portland City Council.

Are There Exceptions to the Public Face Covering Mandate?

Yes, the mandate provides a few exceptions:

• In addition to any individual under the age of 2, face coverings are not required for anyone with a medical condition that is complicated or irritated by a facial covering, or anyone with difficulty breathing, or anyone who is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance. Under ME law, most businesses that are open to the public are generally considered public accommodations and should have a process in place for patrons with medical conditions that prevent mask wearing to make certain exceptions.
• Any person alone in a public building, so long as they remain alone.
• Any business within a public building which actively screens and limits who may enter its premises only to persons with established proof of vaccination for COVID-19.

Are How Long is This Public Face Covering Mandate in Effect and What if it is Violated?

The mandate will be reviewed every 30 days. Violations are subject to the general penalty provisions of section 1-15 of the Portland City Code of Ordinances (a fine not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00)) and a person in violation will be directed to comply with the mandate or leave the applicable location. Additionally, Portland’s Local Health Officer may institute any legal action to enforce the mandate.

For additional questions and legal guidance, contact one of our Bernstein Shur labor and employment attorneys who are ready to help you and your business navigate these changing rules and regulations.