How will Gov. Northam's mask order be enforced?

UPDATE (May 28):

Updates on enforcement details from Governor Northam's May 28 press conference

One of the biggest questions that's been posed since Northam's announcement of the mask order earlier this week is how exactly it will be enforced. The governor had said on Tuesday that it would be the authority of the health department and not a matter for law enforcement, but the health department explained on Wednesday that they can use court orders against businesses that refuse to comply with a Class One misdemeanor.

Rita Davis, counsel to the governor, came to the podium on Thursday, to explain that in more detail.

Davis said the enforcement is a statutory process by which all public health orders are enforced and that it's been the standard included in all five public health orders issued so far in the pandemic.

It was not created specifically for the mask order and is not new, she emphasized.

As the standard enforcement mechanism established under Virginia's health code, she said it provides two ways for the health commissioner to enforce the order: by a civil order to obtain an injunction against a non-compliant business or by a warrant through a magistrate for a misdemeanor charge.

Davis said those are the procedures made available for any enforcement, but they're reserved only for "gross and repeated" violations.

She said the state government is not expecting business owners to enforce the order, but instead encourages them to educate their patrons about the importance of wearing a mask.

While not the responsibility of the business owner, she said it shouldn't be the responsibility of the health department or law enforcement either to make sure you're wearing a face covering, but the personal responsibility of each Virginian as the right thing to do to protect their families and fellows Virginians.

So can a business refuse service to someone who refuses to wear a mask? Davis encouraged business owners to use the opportunity to have a discussion with any non-compliant individual, but said business do have the right to ask a patron to return at a different time "when they're more convinced they should be wearing a mask."

Asked by a reporter for more information later, Gov. Northam said the intent of the mask order is to "do the right thing" and take care of people around you, not to lock anyone up in jail.

He said, as a business owner, he would nicely ask someone who's not wearing a mask if they would mind wearing one for the safety of the people in his office.

While not wanting businesses to be in the practice of enforcing the order to avoid causing any confrontations, he asked people to just think of others and wear a mask for their benefit.

Asked for more clarity about what the health department will do, Counsel Davis said if a person repeatedly refuses to wear a mask, rather than a business enforcing it themselves, they would report the incident to the Virginia Department of Health, which could take action as needed.

The only situation in which she foresees law enforcement involvement is if a confrontation evolves between a patron refusing to wearing a mask and an employee, but at that point, law enforcement is not there because of someone not wearing a mask, but because of a confrontation between a patron and an employee.

Okay, but what about people who say they meet one of the exceptions to the mask requirement listed in the executive order? Governor Northam said that business will have to rely on a person's word if they say they meet an exception. Again using his medical office as an example, he said if someone explained that they had COPD and so couldn't wear a cloth mask, he would accept that explanation and encourage them to continue social distancing.

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On Tuesday, Governor Ralph Northam

announced a new executive order to require Virginians to wear masks

when entering certain indoor businesses as of this coming Friday.

It's a similar order to those that have been in effect in other states for weeks, if not months, but throughout March and April, Governor Northam had repeatedly said that he was strongly encouraging, but not requiring, facial coverings.

However, the CDC and numerous health agencies across the country have updated their guidance in recent weeks as more is learned about the spread of COVID-19 to recommend face masks for more people in more situations as a way for businesses to safely reopen.

Wearing a face mask isn't about protecting yourself — it's about protecting others around you from your own droplets in case you may be carrying COVID-19 while asymptomatic. The basic idea, as expressed by Virginia health commissioner Dr. Norm Oliver, is, "I wear a mask to protect you, you wear a mask to protect me," and then the spread of the virus can be limited a lot, especially in confined indoor spaces.

Virtually all healthcare professionals and epidemiologists, in particular, agree on that principle.

The details of Executive Order 63

Under

Executive Order 63

, which establishes Virginia's mask order and sets it to take effect on May 29, everyone 10 years old and older is required to wear a face covering while " entering, exiting, traveling through, and spending time in" the following establishments:

• All essential and non-essential brick and mortar retail establishments, including grocery stores and pharmacies

• All personal care and grooming establishments

• Inside food and beverage establishments (The text of the executive order specifies "restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets, when permitted to reopen for indoor dining")

• On public transportation, including train stations, bus stations, and on intrastate public transportation, including in waiting or congregating areas

• Entertainment or public amusement establishments when they're allowed to open in a later phase

• State and local government buildings and areas where the public accesses government services

• Inside any indoor space shared by groups of people who may congregate within six feet of one another or who are in close proximity to each other for more than ten minutes

Exceptions are provided for the following situations:

• Exercising

• While eating or drinking

• If you have trouble breathing or are unable to remove a mask without help

• If health conditions prohibit wearing a face covering

• Young children

The governor strongly encouraged any child 3 years old and older wear a face covering if possible, but it's only required for children over the age of 10.

Northam's office also issued a reminder that face coverings do not take the place of public health guidelines to maintain six feet of physical distancing, increase cleaning and sanitation, and wash hands regularly.

What exactly is a face covering?

Under the order, a face covering includes anything that covers your nose and mouth, such as a mask, scarf, or bandana. Medical-grade masks and personal protective equipment should be reserved for health care professionals, Northam said.

In his Tuesday briefing, the governor encouraged people to visit websites with DIY instructions for no-sew masks if they're unable obtain a face covering or to consider options like bandannas, which are cheap and readily available.

He also encouraged any groups that can help provide face coverings to people who don't have them to please do that.

But how will the order be enforced?

That's the big question that was left largely unclear after the governor's press conference on Tuesday,

Governor Northam said the mask order is a "matter of public health" and not a criminal matter, so any enforcement of the new mask order would be done by health officials rather than law enforcement officials.

The governor said his goal is to protect people's health and not to get people in trouble for not wearing masks, saying he's simply asking people to respect one another.

Pressed by reporters about how the order can be enforced, he said his office looked into the possibility of criminal enforcement and determined that violations could only be charged as a class 1 misdemeanor, which can come with large fines or even jail time, and he said that's not what he wanted.

But the text of the executive order itself sets the punishment for violating the order as a class 1 misdemeanor.

So what's the catch? The difference is that rather than an individual person potentially being charged because they refuse to wear a mask inside a grocery store, for instance, the Virginia Department of Health will handle all enforcement and will charge businesses rather than individuals.

Essentially, no law enforcement is involved in the process at all.

People would need to contact the Virginia Department of Health about any businesses that are not complying with the order, and local health districts will only take action against businesses they deem are being "grossly negligent" in enforcing the mask order.

Clark Mercer, Northam's chief of staff, provided more detail on enforcement than the governor on Tuesday and said health officials would simply issue warnings to individuals not wearing masks so their focus can be on businesses refusing to enforce the requirement for masks inside their buildings.

In the case of a business repeatedly not following the mask order, the Virginia Department of Health and the Department of Labor and Industry can be contacted and can each take action against businesses, including pulling the operating license of businesses that refuse to comply, Mercer said on Tuesday.

But neither he nor the governor addressed the text of the order, which was released several hours later, that listed that violations can be charged as a misdemeanor.

On Wednesday, WHSV reached out to the Virginia Department of Health for clarification on how they plan to enforce the order.

They provided this statement:

VDH has the power to enforce egregious patron/customer violations through a court order, which is punishable by a Class One misdemeanor. Many businesses also have face covering requirements for their employees as outlined in Phase One restrictions (restaurants, salons, etc.), which are enforced by the health department and the relevant regulatory agency. We are not looking to put anyone in jail—we are focused on education, and we hope and expect that Virginians will do the right thing.

Response to the enforcement practice

Virginia Republicans were quick to respond on Tuesday, saying the governor would be forcing small businesses to enforce a public health order on top of so many changes they've already had to make to be able to operate in the pandemic.

House Republican Leader Todd Gilbert, R-Shenandoah, House Republican Caucus Chair Kathy Byron, R-Bedford, and House Republican Whip Jay Leftwich, R-Chesapeake issued the following statement in response to the governor's order:

“We are deeply concerned about Governor Northam’s actions today. It is unconscionable to require businesses to enforce a government mandate under threat of sanction from government agencies. This puts yet another burden on businesses already reeling from months of being shut down or severely limited." “Throughout this episode, the Governor has acted inconsistently. Through his own actions the Governor has squandered his capital as a physician whose advice people would be willing to follow. Virginians would be much more likely to follow the suggestions of a leader who instills confidence and leads with consistency.”

On Wednesday, the Virginia Chamber of Commerce responded similarly, issuing this statement concerning the Virginia Department of Health’s authority to revoke a business’s license for non-compliance:

“As businesses continue to adapt to the current environment and restrictions associated with Phase One of the “Forward Virginia” plan, it is unreasonable to hold them accountable for the enforcement of this new mandate, which could create unsafe situations for workers tasked with confronting non-compliant customers. “The Virginia Chamber continues to strongly encourage the use of face coverings to prioritize the safety of our citizens, but is deeply concerned by the burden the enforcement of this mandate will place on the thousands of businesses throughout the Commonwealth.”

Moving into the 'new normal'

The governor's office is expecting the General Assembly to discuss the possibility of a civil fine for violations, instead of a class 1 misdemeanor, when they re-convene for a special session at some point in the next two months, Northam said on Tuesday, but nothing is happening on that front at this point.

Due to the constantly developing situation that is the COVID-19 pandemic, with researchers learning more about the novel virus each day and state decisions on reopening based on the latest data trends, which could change any day, the governor has not set an end date for Virginia's mask order.

He said the order will be lifted as soon as it's safe to do so, but the focus is largely on protecting workers from customers who could spread the virus, so there is no exact timeline.

The governor emphasized multiple times on Tuesday that the idea behind the order was especially to protect workers—as more businesses open up, reopening continues, and more people venture out—who are put in vulnerable situations by interacting with customers who come into businesses not wearing masks.

As for the fall, when students are hoping to return to school and when Northam has said he hopes to have schools reopen, he said his team is considering the possibility of requiring masks inside schools, but will have to see what the virus does in the coming months before fall comes to make a decision on that.