On Tuesday, January 25, 2022, Douglas County District Court Judge Stratman issued an order denying the State’s motion for temporary injunction, upholding the Douglas County District Health Department’s Omaha Mask Mandate (the “Mask Mandate”) until a final decision can be reached on the merits regarding the legality of the Mask Mandate.

Douglas County Health Director Lindsay Huse issued the Mask Mandate, which took effect at midnight on January 12, 2022. The Mask Mandate generally requires individuals aged five years and older to wear a mask at all times in places open to the general public, unless six feet could be maintained between non-household members at all times. The Mask Mandate contains numerous exceptions, such as participation in religious services, engaging in exercise or activities that require removal of a face mask, or seeking public government services.

By its terms, the Mask Mandate is to remain in effect until the positive case counts for the City of Omaha are below 200 persons per 100,000 on a seven day total and hospital capacity is maintained at or below 85% for seven consecutive days. The Mask Mandate also says that it will be reviewed at least every 4 weeks for a determination on whether it should be extended or expired.

The matter will be set for trial at a later date, addressing the validity of the Mask Mandate under the rulemaking authority of state and local health authorities. As the Court noted in its Order, “This case does not implicate any judgment with respect to the wisdom or efficacy of mask-wearing requirements.” To the extent the State seeks further review or relief from this ruling, the Court Order states, “The City Council retains the power to alter or amend [city] ordinances, or to issue an ordinance nullifying Dr. Huse’s current mask requirement.” Judge Stratman also indicated the Nebraska Legislature can address the authority granted to agencies like the Douglas County Health Department.

Koley Jessen’s Labor and Employment team continues to monitor this case and other local, state, and federal developments, helping business stay up-to-date on the latest legal requirements regarding COVID-19 in the workplace. Contact a member of the Labor and Employment team with any questions or concerns regarding the impact of this order, or other COVID-19-related matters.

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