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Albuquerque:

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Roswell:

Taos:

Clovis/Portales:

Masking Q & A

By Melanie R (with support from Janice O)

Q & A re: New Mexico Masking as of 2.11.2021

This is not legal advice, nor does it represent recommendations by any group, organization, or individual.
Laws and regulations with respect to masking are constantly changing. This information is provided as of 2.11.2021 for your reference only. Individuals must do their own due diligence, check the latest information, and then assume personal responsibility for how they choose to proceed.
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Q: Do New Mexicans have the right to an “exemption” which says they are not required to wear a mask?
Yes.  The state’s public health order does provide for medical exemptions.  Businesses are required to require written exemption from a health care provider.  Some businesses do not honor exemptions and will still prevent you from entering even if you have an exemption.

Here is the public health order which directs this, as of 1.29.2021, taken from https://cv.nmhealth.org/wp-content/uploads/2021/01/GovernorsOffice@state.nm_.us_20210129_161525.pdf

Again note that this information is always subject to change:

NOTE: The requirements can be different for each city. For example, the masking requirement in the City of Santa Fe is defined by City Ordinance 2020-13 available at https://www.santafenm.gov/2020_ordinances

Q: What kind of health care provider?

This is not specified in the public health orders.


Q: What kind of note from a provider is needed?

Written.  For example, Jane Doe is exempt from or unable to wear a mask.

Q: Does the note need to say why the individual is exempt? 

No.  This would be a violation of HIPPA laws.

Q: Does the person who is exempt need to carry the note?

Yes.  They are required to present it to a business upon entry when requested to do so.

Q: Are stores and businesses obligated to let people shop or receive services with an exemption? 

It appears as of this time that NM law does not ensure equal access to services if a person chooses not to or cannot wear a mask.  It is not completely clear whether businesses must provide some reasonable accommodation.  As of 2.11.2021, this seems to vary greatly from business to business. For example, some stores require that a person wear a face shield if they are not able to wear a mask. Some businesses will even offer a make-shift face shield for a shopper to use.

Q: Does it help if a person carries part of the Public Health Orders with them to show the regulations?
Some businesses seem not to know the details of the current regulations in this regard.
Some people do use this strategy, carrying the public health orders or executive orders which specify there is a medical exemption.  You can find all state public health and executive orders here:  
https://cv.nmhealth.org/public-health-orders-and-executive-orders/

Q: What are the possible fines or legal punishment for not wearing a mask in public places?

This information is always subject to change and depends on where you are located, as it is impacted by both State Public Health Orders, and City Ordinances. Here is the information that pertains to Santa Fe.

New Mexico: As of 2.11.2021 the following is posted on the New Mexico Department of Health website with reference to penalties for violations of current state Public Health Orders in general, not just masking:
https://cv.nmhealth.org/public-health-orders-and-executive-orders/frequently-asked-questions/

“Is this the law? What if a business or individual violates the state restrictions?

Yes, this is the law. The state Public Health Emergency Response Act authorizes the state Department of Health to declare a public health emergency and to enact restrictions on day-to-day activities in order to protect the health and safety of New Mexicans. The Department of Health, under the provisions of this law, may issue civil administrative penalties of up to $5,000 a day per violation of an emergency public health order. The state Supreme Court has upheld the authority of the state Department of Health in this matter.”

With respect to masking specifically, on July 2, 2020 the NM Governor announced New Mexico would begin giving $100 fines to people who violate the face covering mandate for public settings and this still seems to be in force. Finding a regulation or ordinance on this seems difficult. Here is a new article about the announcement: https://www.abqjournal.com/1472196/tougher-mask-mandate-met-with-relief-defiance.html

Santa Fe:  City Ordinance 2020-13 Defines the masking regulations in Santa Fe and states the penalties as follows: https://www.santafenm.gov/2020_ordinances

0-7.4 Penalties.
Any persons found guilty of a violation of this Section [i.e. masking requirements] shall be guilty of an infraction, punishable by:

A.           a written warning for a first violation;
B.           a fine not exceeding fifty dollars ($50.00) for each subsequent violation of this

Q: If a person is approached by law enforcement for not wearing a mask, what is their legal recourse, and what documentation should they have with them to this end?

A written medical exemption from a healthcare provider may be your best bet. Also, be aware that, of this writing, city police cannot enforce the state’s order, only the State Police can do that.  However, the city police can enforce a city ordinance. You also may be able to challenge a fine in court, but without an exemption the court may uphold the fine. 

Q:  Is there notice of liability a person can serve to businesses that try to enforce mask wearing?

There is a Cease and Desist Mask Policy Letter written for Santa Fe and available for customization at
https://unmasked.icu/9-unmasked-action/cease-and-desist-mask-policy-letter/
You are responsible for adapting or using this document: it’s availability here does not imply legal advice.

Peggy Hall also has a lot of documentation available for download and customization at
https://www.thehealthyamerican.org/notice-of-discrimination
Please be aware that Peggy Hall’s documents have a California focus which may not be correct for New Mexico and would need to be reviewed by a lawyer to ensure legal accuracy and relevance in your location.

Q: Where can I get more information about the public health emergency laws in New Mexico?
The statutes of the Public Health Emergency Response Act for NM are here: https://law.justia.com/codes/new-mexico/2006/nmrc/jd_ch12art10a-712b.html

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