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Where we stand on mask mandates

By Lindsey French
AAC Legal Counsel

In Spring 2021, the Arkansas General Assembly was finishing up a Regular Session that, although certainly different from previous sessions due to COVID-19, had been largely unaffected by the virus as far as actual transmissions among the legislature. By late March, Capitol occupants were becoming vaccinated, shedding their masks, and preparing to return to the “old normal.” A handful of legislators contracted COVID-19 during the session, but it ended in late April without any massive outbreaks.

As evidenced by a lawsuit and open remarks in the media, some conservative lawmakers were opposed to some of the Gov. Asa Hutchinson’s emergency orders during the pandemic, including the statewide mask mandate. On March 22 Sen. Trent Garner introduced SB590 banning future mask mandates. It passed the Senate with 27 votes and an emergency clause that would have made the law effective on the date it was signed by the Governor.

In the House, Rep. Jeff Wardlaw filed an amendment to SB590. It deleted the original bill’s language in its entirety and added an uncodified section saying that upon its effective date, all mandatory face covering requirements shall end, except for those implemented by private business or state-owned or state-controlled healthcare facilities. The amended bill gave the General Assembly authority over the mandatory use of face coverings and prohibited state agencies, political subdivisions of the state, or state or local officials from mandating individual use of face coverings, including as a condition for entry, education, or services.

The bill as amended directs that state or local governments could recommend mask usage but must provide notice that usage is not mandatory. Private businesses, state-owned or controlled healthcare facilities, and facilities operated by the Arkansas Department of Corrections or Department of Human Services Division of Youth Services are exempted. SB590 as amended passed the House with 69 votes on April 20, and then passed the Senate with a narrow margin of 19 votes on April 22, less than a week before the legislature recessed from session until the Fall. Because it did not get the votes to pass the emergency clause, Act 1002 went into effect on July 28, 2021.

What does this mean for county officials? Arkansas is experiencing record-setting COVID-19 infection and hospitalization rates, the likes of which we did not see in 2020, and officials and constituents alike are asking about going back to local mask requirements. Act 1002 as it was passed prohibits the county judge or quorum court from passing local mask mandates for the county. It also prohibits requiring masks as a condition for entry into the courthouse or into an elected county official’s office. Elected officials may recommend and encourage mask usage in the courthouse, but you must post notice that it is not mandatory if you do so.

Act 1002 applies to city and school district officials as well, and with schools open and holding large amounts of unvaccinated students, many school districts are concerned. As of Aug. 5, the Marion School District had 839 students and staff quarantined and 56 positive cases after beginning school on July 6. They were joined by the Little Rock School District in asking the General Assembly to amend Act 1002 to allow school districts the option to implement local district-wide mask mandates. The Governor called a Special Session to convene on Aug. 4, to take up the issue as well as an unrelated federal unemployment benefits matter.

After extensive testimony on the issue over two days from citizens and experts, the Joint Public Health Committee did not pass a bill by Rep. Julie Mayberry to allow school districts to decide whether to implement mask mandates for students 12 and younger. The bill did not include any such flexibility for cities or counties. Lawsuits were filed across the state, including one filed on Aug. 2 from parents of school children, joined by the Marion and Little Rock school districts and Pulaski Judge Barry Hyde and Pulaski County Sheriff Eric Higgins.

On Aug. 6, Judge Tim Fox issued a preliminary injunction declaring Act 1002 unconstitutional based on three grounds: violating Amendment 55 as it relates to the county judge’s authority over county property; Amendment 80 as it relates to a circuit judge’s authority over the courtroom; and the Equal Protection Clause as it relates to the similarly situated classes of public school and private school children. The state has filed an appeal, and Fox has set a three-day court hearing in November.

The General Assembly did vote to affirm Gov. Hutchinson’s July 29 state of emergency declaration, which allows Arkansas to seek outside assistance and temporarily relax licensure requirements for overcrowded and understaffed hospitals. However, this state of emergency will not look like the one the state was under for over a year until May 2021. The Governor made clear he has no plans of putting restrictions on businesses, and with the General Assembly not amending Act 1002, mask mandates will not be permitted for most public settings.

Mask mandates aside, what can county leaders do to try and curb our current surge in COVID-19 infection rates and hospitalizations? Masks and social distancing can be encouraged in county-operated buildings. Many communities are working with local healthcare providers to set up convenient pop-up vaccination clinics, and the federal government has issued guidance for using federal COVID-19 relief funds for local vaccination incentives. In 2020, the creativity shown by county officials in curbing the spread of COVID-19 while remaining open to the people’s business was nothing short of amazing. I expect that we will see the same during our most recent trials.

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