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June 2, 2020 · OPINION

Virginia mask mandate leaves businesses uncertain

Stock Illustration
Tasked with enforcement, the Virginia Department of Health will get involved only in response to complaints of repeated or egregious violations.
By Bob Lewis
Virginia Mercury

Businesses despise uncertainty. They’ll take an adverse certainty over the unknown any day because at least you can plan around adversity.

That’s why Gov. Ralph Northam’s decree that people shall wear masks in certain public venues is creating angst among businesses over potential confrontations arising from their staff effectively being made the first line of enforcement.

> Executive order at bottom of column

Masks are good policy. Medical professionals and common sense dictate they are a reasonable step to minimize the risk of airborne exchange of the novel coronavirus in congested public settings as the commonwealth gingerly reopens. It’s also just a really good way to show your fellow humans you’re not a selfish jerk.

The problems start when you start asking how. As best as could be pieced together from Gov. Northam’s Tuesday and Thursday news conferences, the order itself, and from journalists’ best efforts to figure it out, here’s the skinny.

The Virginia Department of Health is the lead enforcement agency. (As much as it can be without doing inspections.) The VDH will get involved only in response to complaints of repeated or egregious violations.

Violations aren’t criminal matters. (Until they are.)

The road to Shawshank starts out as a civil complaint initiated by the VDH. Should worse come to worst, a violator would face a Class 1 misdemeanor (a minor crime) punishable by up to a year in jail and a $2,500 fine. But that’s only after this civil process has been adjudicated through general district court.

The police aren’t involved. (Until they are.) The cops would not show up to arrest people for mask violations per se. They would show up to handle trespassing, disorderly conduct or assault reports should a maskless customer, employee or vendor elect to throw down rather than comply.

Got it? (Yeah, me neither.)

But it’s more than a bit worrisome to proprietors and managers of retailing establishments across Virginia who, two days and a wakeup after the state’s guidance was released, had to have all of this figured out and in place for Friday’s start of the masked era.

“This is a mandate with no guidance on enforcement,” said Virginia Retail Federation lobbyist Jodi Roth. She said the Northam has administration reassured her that the governor would not make businesses the lead enforcers and put them in harm’s way. She said that in numerous conversations with the administration and its task force on reopening, she emphasized the perils of putting businesses out front on enforcement and was assured that it wouldn’t come to that.

“It was a good idea – until it wasn’t,” Ms. Roth said.

Her guidance to the retailers she represents is to post clear signage outside their stores notifying patrons that the state mandate requires they wear masks inside and for their employees not to approach and confront those who refuse.

Notwithstanding assurances to the contrary that Gov. Northam made on Thursday, his order leaves the businesses themselves as the first line of enforcement. It falls to them to inform customers, patrons and clients that wearing masks is required to go inside.

“There’s no reassurance for business owners that they will not be held liable for people who enter their stores without masks or that store employees won’t have to be put in dangerous or compromising situations,” Ms. Roth said.

And, as recent videos and headlines from across the country attest, not everyone takes the suggestion gladly. Nobody wants those scenes playing out in their places of business or the public relations and potential litigation consequences that could linger long afterward.

“Legal liability hangs over many of them like a sword of Damocles,” said Chris Saxman, executive director of the nonpartisan pro-business advocacy nonprofit Virginia FREE and a former member of the House of Delegates.

“Businesses in the retail sector are very concerned. Anything that has walk-in trade is very exposed,” he said, adding that scant specifics accompanying the governor’s orders exacerbate the uncertainty.

“For instance, what happens if a worker takes a mask off because he gets too hot. What if you’re eating in the break room and don’t have a mask and someone gets the virus? There are a myriad of implications in the public space where you have easy access to people,” Mr. Saxman said.

Who wants to be the worker posted at the supermarket entrance with the duty to tell patrons to mask-up or stay out? Or the lone employee on duty in a tiny shoe repair shop when several people (none of them masked) walk in?

If there’s a defiant and sustained failure to comply, an employee or manager has to instantly decide from a number of options: ask the offender to leave; discipline the offender if he or she is an employee; or, sensing that things are really going sideways, call the police.

Retailers are hardly the only sector of the workforce affected. Bus drivers have to ensure that riders waiting at bus stops either put on a mask or deny them passage. Foremen on factory floors or loading docks have to admonish workers and perhaps suppliers to mind the mask rule.

School administrators have begun sweating the unknown, too. With Gov. Northam’s statement that he sees schools reopening this fall, superintendents across Virginia are pressing the administration for guidance as soon as possible on class sizes, distancing, bus occupancy and more so they can begin planning for a certainty rather than endlessly spinning hypotheticals. And given the scope of the still unknown but potentially vast changes that may be necessary to address the contagion, three months is not much time, according to Ben Kiser, executive director of the Virginia Association of School Superintendents.

The governor has been taken to task for other well-intended and sound policies that suffered from slow or poor execution since the pandemic’s onset in March. He implemented the mask mandate weeks after other states. He teased the idea after beginning the Phase 1 reopening but waited until after the first major summer holiday to implement it. Then he undermined his own moral authority on the issue by being repeatedly photographed mingling unmasked over the Memorial Day weekend with people on the Virginia Beach Boardwalk and the social media storm it generated.

Now, Ms. Roth says, merchants emerging from 10 punishing weeks of suspended animation find themselves primary enforcers of state policy while figuring out how to jump-start their livelihoods.

“Business wants to do this right and protect their employees. They are incensed that they are not being heard and a lack of clarity on absolutely everything,” she said. “This should be a happy day, but now there’s all this confusion and stress and concern.”

Bob Lewis covered Virginia government and politics for 20 years for The Associated Press. Now retired from a public relations career at McGuireWoods, he is a columnist for the Virginia Mercury. He can be reached at rqlewisjr@gmail.com.

EO 63 and Order of Public H... by Fauquier Now on Scribd


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Blackfaceralph · June 5, 2020 at 11:07 pm
Silii Even dental hygienist wear n-95 mask when they clean your teeth.
Blackfaceralph · June 5, 2020 at 11:01 pm
Silii Medical people mostly wear N-95 mask or some thing close during surgery. Not a cloth mask or bandana’s to cover their mouths and nose.
N95 mask effectively prevents viral spread. These masks, when properly fitted, seal closely to the face and filter out 95% of particles 0.3 microns or larger. Even a n-95 mask wont protect you all the way from the bat flu. The bat flu is .12-.6 microns. So you only have a 50% chance that a n-95 mask will protect you from the bat flu. So you know damm well that a cloth mask or what ever you wear isn’t going to do crap.. You have been told a bunch of bs if you think your cloth mask or what ever you are wearing is going to help you.
AmericanPatriot · June 5, 2020 at 6:49 am
Whats endangering businesses, and our country, is the juvenile delinquent behaviour of you hysterical shriekers.
Silii · June 4, 2020 at 7:19 pm
Blackfaceralph: no, medical personnel don't always wear "medical grade" masks. Actually they wear masks to keep from spreading germs, spit droplets from THEIR mouths/noses, i.e, to protect patients. Even in the OR the masks and other precautions are to keep from spreading infection TO THE PATIENT. And, for those who got their knickers twisted at my comment - I stand by it. People intentionally not wearing masks in businesses are just being immature and certainly don't care if the business makes it or not during and after this pandemic.
AmericanPatriot · June 4, 2020 at 3:12 pm
or an idiot
AmericanPatriot · June 4, 2020 at 3:07 pm
Remember when a mask was the sign of a villain?

Not much has changed, has it.
jim goodwin · June 4, 2020 at 1:18 pm
Yeah, me too.
Blackfaceralph · June 4, 2020 at 1:09 pm
Jim. You do know that the governor didn’t rescind the existing mask law that was passed during the hay days of the kkk that said wearing a mask in public is against the law in VA. So technically everybody wearing a mask in public now is breaking the law. Lol. So I hope you don’t get arrested for wearing one. 😊
jim goodwin · June 4, 2020 at 9:45 am
AP, true. But there is law that gives that fool the power to create the EO so it's a de facto law.
AmericanPatriot · June 4, 2020 at 9:18 am
Jim, no law makers made ANY law. This idiocy was crafted by the dirty little juvenile delinquents the KKK robe wearing baby killer surrounds himself with.
jim goodwin · June 4, 2020 at 5:31 am
LOL...under Exceptions:

"Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition."

There's your "get out of jail free card." I swear, is there no backbone remaining in law makers? It's one thing to create a law but to add a clause that gives everyone the ability to subvert it is laughable.

Blackfaceralph · June 3, 2020 at 1:04 pm
Silii Medical personnel wear medical grade masks to prevent the spread or catching of a virus or bacteria. 90% of mask worn by the people now don’t do crap. Plus you have the dummies out there that dont even wear them correctly . What bs all this is.
AmericanPatriot · June 3, 2020 at 7:01 am
I wonder if silly has ever heard of Justine Damond.

I am betting no.
Joan Smith · June 3, 2020 at 6:46 am
I hope you wear your mask while rioting, Silii.
AmericanPatriot · June 2, 2020 at 5:38 pm
Hey, you don't need a mask to assault police, or destroy private property, or to block public roads.

Only to go shopping.

Life under democrat dictates is surely fascinating.
Silii · June 2, 2020 at 4:42 pm
This is really about immature people who aren't concerned about their or others' safety while the corona virus is still spreading rapidly. Face masks don't hurt. Medical personnel have worn them for decades. The purpose is to keep your spit and disease causing agents from your mouth and breath contained so others aren't exposed to the dangerous crap coming out of your nose and mouth. If you refuse to wear a mask inside a place of business, YOU are the one causing the problem and putting the store owner in a bad position when all they want to do is get their business up and running again. Wearing a mask is the least anyone can do to help our stores. Show some respect.
AngryBob · June 2, 2020 at 9:07 am
This is really about keeping the economy tanked until November. Governor Coonman is doing his part for his party.
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