Attention Portland Employers: Updates on Mask Mandate, Hazard Pay

On Monday, Portland City Councilors took two significant actions that affect employers in Portland, Maine. First, the Council repealed an emergency order from March 2020, eliminating the hazard pay provision set forth in the city’s minimum wage ordinance. Second, the Council enacted a city-wide indoor mask mandate affecting most public buildings.

Elimination of Hazard Pay

In 2020, a city ordinance was enacted raising Portland’s minimum wage during a state or city state of emergency to 1 ½ times the city’s regular minimum wage for most workers. In 2021, the Maine Law Court upheld the constitutionality of the ordinance but held that the hazard pay provision did not take effect until January 1, 2022. Based on the City’s regular minimum wage of $13.00 per hour effective January 1, 2022, the minimum wage under the ordinance is $19.50 per hour during a state of emergency in 2022. This minimum wage applies to all workers “who perform work for an Employer for monetary compensation within the municipal limits of the City,” and the only exception is for employees “under a teleworking arrangement.”

By repealing the emergency order, Portland City Councilors effectively eliminated the hazard pay requirement. However, because the repeal does not take effect for 10 days, covered employers must pay covered hourly non-tip credit employees the minimum wage of $19.50 per hour from January 1 through January 13, 2022.

Indoor Mask Mandate

The City Council also implemented a new indoor mask mandate, which takes effect January 5, 2022. The mask mandate requires that all persons (including employees, owners, customers, and visitors) wear face coverings in public buildings in the City. A “public building” is “any building or portion of a building within the City of Portland that is regularly accessible to the general public.” However, a public building does not include:

a private residence or residential unit, a public pre-school or K through 12 school (which remains under the authority of the Board of Public Education), a church or other house of worship, office space where the occupant(s) can be physically separated from the general public, or the 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 or audience.

As applicable to bars and restaurants, face coverings may be temporarily removed “to participate in the primary purpose of the business, such as eating or drinking,” but only when those persons are “at an isolated location, such as a table or booth.”

Face coverings must also be worn when using or operating public transportation and ride-sharing services.

There are three categories of notable exceptions to the mask mandate:

• Any person who is under the age of two, has a medical condition complicated or irritated by a face covering, has difficulty breathing, or who is unable to remove a face covering without assistance is not required to wear a face covering.
• Any person who is alone in a public building is not required to wear a face covering.
• If a business in a public building “actively screens and limits who may enter its premises to only Persons with established proof of vaccination for the COVID19 virus,” persons who are screened and provide proof of COVID-19 vaccination do not need to wear a face covering.

Employers must post signage at entrances and other “appropriate locations,” which may include alternative entrances and registers, stating that “Persons entering are required to wear face coverings by order of the Portland City Council.”

The City Council is required to review the mask mandate ordinance every 30 days.

What To Do Next:

Based on these updates, employers in Portland should take the following steps:

• Ensure that hourly workers are being paid a minimum wage of $19.50 per hour from January 1, 2022, through January 13, 2022.
• Be aware of how the temporary hazard pay rates will affect rates of pay for paid time off. For employers covered by the Maine Earned Paid Leave law, at least 40 hours of paid time off must be paid at the employee’s “base rate,” which is similar to the employee’s regular rate for purposes of overtime. The base rate is calculated by looking at earnings from the week prior to the requested time off and dividing those earnings by the hours worked. Accordingly, an employee’s base rate will be elevated if they received the hazard pay rate during the week prior to taking paid time off.
• Assess whether your business is covered by the mask mandate (i.e., whether you operate in a public building or portion of a public building).
• For those businesses that are covered by the mask mandate:
  • If you plan to screen and require proof of COVID-19 vaccination from persons entering the building, ensure that you have procedures in place to ensure compliance with those screening requirements. If you are requiring proof of COVID-19 vaccination from employees, be sure to keep those records confidential and secure in a space separate from the employee’s personnel file.
  • If you do not plan to screen and require proof of COVID-19 vaccination from persons entering the building, update your employees on the new masking requirements and begin enforcing those requirements for employees and visitors.
  • Post the required signage by January 10th at each entrance to your building and at check-out locations. The signage should state: Persons entering are required to wear a face covering by order of the City Council.

For more information about the hazard pay provision or indoor mask mandate, contact a member of Verrill’s Employment and Labor Practice Group.