Virus Spikes While Local and State Officials Bicker Over Face Mask Mandates

This story originally appeared on Stateline.

DALLAS — Every day, Texas continues to break records in COVID-19 cases and hospitalizations, rivaling hotspots such as Florida and Arizona as the new center of the U.S. pandemic.

As the situation escalates — spiking to a record 6,584 new cases Wednesday and adding more than 5,000 new infections almost every day last week — Republican Gov. Greg Abbott has consistently touted the ways in which Texans can stay safe: Wear a mask, sanitize often, social distance. Last week, he encouraged Texans to just stay indoors, then said he’d put a pause on reopening businesses. By the end of the week, he ordered bars to close and restaurants to cut their occupancy from 75% to 50%.

Yet even as Abbott has warned that Texas will take further measures if the situation doesn’t improve, he has refused to allow local officials to penalize people who decline to wear masks in public. However, earlier this month he began allowing local officials to penalize businesses that don’t require employees and customers wear masks.

And he has plenty of company: Across the country, local officials and governors continue to bicker publicly about who will establish safety measures. In many of the cases, Republican governors, like Abbott, deny local leaders the right to impose their own safety rules, arguing instead that advice makes more sense than mandates, even amid sharply rising caseloads. The arguments beg the question of how state and local officials plan to agree on safety precautions in a new normal for months to come.

Consider the squabbles springing up: Several Texas mayors petitioned Abbott to let them issue mask mandates for their cities, to no avail.

In Arizona, Republican Gov. Doug Ducey at first refused to issue a statewide mask requirement and told local officials they couldn’t either. He relented on local control earlier this month, though Arizona’s caseload remains among the fastest-growing in the nation.

California Gov. Gavin Newsom, a Democrat, said he’d withhold federal CARES Act funding from any county that doesn’t follow state safety measures. Taking an opposite approach, Nebraska Gov. Pete Ricketts, a Republican, has threatened to withhold federal coronavirus aid to localities that do impose mask mandates.

“I think what we’re going to wind up seeing is a series of these kinds of awkward compromises in which the governor and then local governments try to continue to assert their primacy,” said James Henson, who directs the Texas Politics Project at the University of Texas at Austin.

Beneath the power dynamics between Texas state and local officials are tensions related to the consolidation of power in recent years that’s strengthened the authority of the state’s executive branch at the expense of the legislature and local governments, Henson said.

“I think you’re bound to get pushback from one end to the other if you try to enforce uniform policies across the state,” Henson said.

States generally supersede local control, but fighting a pandemic requires local cooperation.

“You’ve got to give flexibility to local government to respond to conditions on the ground, certainly within parameters and goals that are set by the state government,” Henson said. “You’ve got to do that and play it in an even-handed way.”

Some in Texas support mandating masks to protect essential workers.

“It gives us the power as small businesses to control the people who come in here,” said Hector Huerta, who works for Buda Juice, a juice bar in Dallas.

Face coverings have become a contentious issue. President Donald Trump has refused to wear a face mask in public, mocked his likely Democratic opponent Joe Biden for wearing a mask and told the Wall Street Journal that some Americans wear face masks to signal disapproval of him.

Still, most states — including the latest coronavirus hotspots Alabama, Arkansas, Arizona, Florida, North Carolina and Utah — require face coverings at least in specific localities or certain types of businesses, such as among employees or customers of barbershops, salons, restaurants and retail establishments. Texas and at least eight other states make similar recommendations. Iowa, Montana and Oklahoma do neither, according to data compiled by the employment and labor law firm Littler. And only three states in the South require masks.

“We're just trying to rise above that debate and instead lay it out by following the regulators whose only goal is workplace safety,” said Brian Calley, president of the Small Business Association of Michigan, where masks are mandated.

Despite the clashes, Americans favor broad COVID-19 restrictions, even if they infringe on personal freedoms and privacy, according to a Fairleigh Dickinson University survey released June 23. The national phone survey randomly sampled 1,003 adults nationwide on landlines and cellphones May 20-25.

Although 79% of Americans support mandatory face masks in enclosed public spaces, 63% of those who approve of Trump’s leadership through the pandemic favor mandatory masks, as opposed to 95% who disapprove of his leadership. The survey found a similar breakdown between Republicans and Democrats. Wearing masks is supported by 74% of white respondents compared with 98% of Black respondents. Black Americans are disproportionately affected by the virus.

States that mandated face masks in public saw a greater decline in COVID-19 growth rates than states that did not, according to a Health Affairs study released June 16. The study looked at 15 states and the District of Columbia that first required face masks in public between April 8 and May 15. By May 22, as many as 230,000 to 450,000 COVID-19 cases may have been averted based on when states passed mandates, the study found.

Despite public health gains, the measures have prompted pushback. The U.S. attorney for the District of Wyoming is monitoring state and county coronavirus safety protocols for constitutional violations. The investigation was prompted by concerns that the orders violated certain individual rights, such as to peaceably assemble.

As the coronavirus continues to spread, there may be other reasons for governors such as Abbott to reconsider. New York, New Jersey and Connecticut announced last week that they will require travelers from several coronavirus hotspot states, including Texas, Arizona and Florida, to quarantine for 14 days.

A ‘Dynamic Situation’

Texas is geographically and demographically diverse, and Texans are experiencing the pandemic in vastly different ways depending on where they live and work. Metropolitan areas are seeing rising cases and hospitalizations. So are rural places with meatpacking plants, nursing homes and prisons.

But at the local level, the governor’s orders have resulted in a patchwork of restrictions. Take the city of Dallas. As an employer, the city requires workers to wear face coverings. But it’s a moot point since most employees are teleworking and most city buildings have been closed since March, said Catherine Cuellar, the city’s director of communications, outreach and marketing.

Signs posted outside city buildings urge visitors to cover their faces. “It doesn’t say face coverings are required because we don’t have any enforcement power as a public entity to require it,” Cuellar said.

Dallas Police Department employees are required to wear masks while on duty in public. Inside the office, they’re only encouraged.

A draft document of Texas state public school safety measures obtained by the Texas Tribune shows officials are recommending staff and students wear masks when schools reopen, but that they expect to impose few mandatory safety precautions.

Abbott has consistently declined to give local officials the authority to mandate residents wear masks in public.

But a Bexar County, Texas, judge earlier this month directed businesses to require employees and customers to wear masks inside their establishments or risk a fine. Abbott didn’t challenge the order. Instead, he responded as if local officials had finally figured out that they had the authority to regulate masks through businesses.

“It was a poor political play, but it brought in some relief,” Henson said.

Since then, Dallas and several other counties have instituted similar orders.

Early in the pandemic, Texas seemed to avoid the worst of the outbreak. It was among the first states to lift business restrictions May 1 after a statewide lockdown. But Texas became a hotspot after the governor asserted the state’s authority to open up in a way that overrode local ordinances and policies, Henson said.

“Texans have already shown that we don’t have to choose between jobs and health,” Abbott said at a news conference last week. “We can have both.”

But there’s no balance between safeguarding the economy and public health when the two are intertwined, said Sherri Greenberg, a clinical professor and fellow at the LBJ School of Public Affairs at the University of Texas at Austin.

“You can have a mayor or county judge or governor say, ‘We’re open,’ but if people don’t feel safe, we’ve seen many of them will not partake in the economy,” said Greenberg, a former Democratic member of the Texas House of Representatives. “Others, because they’re older or may have underlying health conditions may say, ‘We’re open, but I think I should stay home.’”

The Dallas County mask ordinance illustrates the confusion, and critics say it could leave some small businesses vulnerable to competition from neighbors.

Most of the city of Dallas is in Dallas County. But small parts of the city fall within neighboring counties. So, while people are required to wear masks in Dallas County, they could head next door to Collin County to shop without a mask and stay within city limits.

“There is no coordinated effort,” said Dallas County Commissioner John Wiley Price, a Democrat who opposed the county’s mask order penalizing businesses. “That’s part of the concern. If this is going to happen, then the governor needs to do it and if he’s only going to do it in urban counties and buttressing counties, then I understand that.”

Follow the Rules

In Michigan, Democratic Gov. Gretchen Whitmer has required business employees and customers to wear masks since April. But the requirement lacks a penalty or enforcement mechanism for consumers, leaving individuals to decide whether to comply.

Navigating the rules has been complicated for small business owners who are “financially in tremendous amount of distress,” said Calley of the Small Business Association of Michigan. Some businesses require customers wear masks, while others are lax.

“No matter what they do, they’re going to lose customers,” said Calley, a Republican and former Michigan lieutenant governor.

But guidelines at the federal level are effective, according to Calley and several small business leaders.

The Occupational Safety and Health Administration (OSHA) has layers of protections, Calley said. OSHA directs businesses to keep out sick people, sanitize frequently touched surfaces and enable social distancing by limiting occupancy. OSHA considers personal protective equipment, known as PPE, the last line of defense, Calley said.

“To workplace safety regulators, it’s definitely not the main thing,” Calley said. “In fact, you want to engineer your whole process so you’re not asking so much of the mask.”

The latest order from several Texas counties that threatens businesses with fines hurts small businesses by putting them in the tough position of having to deny or kick out customers, said Annie Spilman, Texas state director of the National Federation of Independent Business.

“And that very person can say, ‘You’ve violated my individual liberty,’” Spilman said.

If state and local governments are going to put the burden on small businesses to police people, they also should provide protections, such as immunity for companies that follow OSHA and Centers for Disease Control and Prevention guidelines or liability protections from frivolous lawsuits, Spilman said.

“If you’re not complying with what OSHA asks for, you’re going to wind up in trouble no matter what Austin says or Houston says,” said Keith Ashmus, founder of mediation and arbitration firm Dispute-Away LLC and past chairman of the National Small Business Association, referring to customers, employees and OSHA.

Most employees working the floor at a half-dozen businesses in the West Village area of Uptown, a popular neighborhood just north of downtown Dallas, didn’t oppose the county’s latest measure.

“We feel backed by the county,” said Huerta, of Buda Juice.

Many stores already require customers to wear masks before they enter. Several had hand sanitizers available. Some clothing stores had masks for bare-faced customers.

But it’s unfair for businesses to have to police customers and not hold individuals accountable, said Khai Nguyen, a barista at Sip Stir Coffee House.

“If they’re not going to wear a mask in here, they’re not going to wear it outside,” Nguyen said.

On a recent Friday afternoon, hours after the Dallas County Commissioners Court approved the order that would go into effect at midnight, about a half-dozen solo customers sat scattered throughout the shop plucking away at laptops. None wore masks.

“We’re considered essential workers,” Nguyen said. “Why should we put our own health on the line when others don’t want to follow the rules?”