On May 26, 2020 Virginia’s governor, Ralph S. Northam issued an Executive Order requiring people in the Commonwealth of Virginia to wear a face mask/face covering when in a public indoor setting. This Executive Order followed the governor’s Executive Order Fifty-Five which required the people of Virginia to stay at home and maintain a distance of at least six feet from each other when using shared outdoor spaces with certain exceptions. This order was effective through June 10, 2020. Is Gov. Northam’s Order legally enforceable or does the Order violate an individual’s liberty or freedom guaranteed either by a state’s constitution or the U.S. Constitution?

A good starting point is to look at what other safety or prophylactic measures Virginia has enacted that require people in Virginia to wear protective gear. In Virginia, any driver and any other person over the age of 18 years of age and sitting in the front seats of any motor vehicle are required to wear seatbelts. A person in violation of this law is subject to a civil penalty of twenty-five (25) dollars. In addition, under Va. Code § 46.2-1095(B), any driver of a motor vehicle is required to ensure that any passenger sitting in the front passenger seat under the age of 18 is wearing an appropriate and approved seat belt. Virginia’s law requiring drivers and front passengers to wear seat belts arguably interferes with an individuals liberty and freedom to make his or her own choices. However, the decision whether or not to wear a seat belt is almost certainly not deserving of heightened constitutional protection and courts in other states have agreed.

Virginia also mandates that any person operating or riding on a motorcycle wear a helmet. No court in Virginia has found that this state law violates that person’s rights or liberties under Virginia’s Constitution and the U.S. Constitution. Efforts have been made to repeal Virginia’s helmet law but, to date, those efforts have failed as legislators appear to agree that wearing a helmet is a legitimate safety concern that ought to be promoted and enforced by the state.

Perhaps there is a difference between seat belt and helmet laws and Gov. Northam’s face mask requirement. In that case, our attention should turn to Virginia’s requirements for immunizations for infectious diseases. I would strongly suggest that immunization requirements to prevent the spread of infectious diseases and the recent face mask requirement to slow the spread of COVID-19 are fairly closely linked.

In 1901-1903 there was an outbreak of smallpox in and around Boston, Massachusetts. The epidemic resulted in 1,596 cases and nearly 300 deaths due to smallpox. To address this threat, Massachusetts passed a statute which granted the city boards of health broad powers and authority for mandatory vaccinations “when necessary for public health or safety.” The Massachusetts statute was challenged in court by an individual who claimed it violated his individual rights. This challenge made its way all the way to the U.S. Supreme Court, which upheld the state’s power to authorize the health board to order vaccinations during a public health crisis like the smallpox epidemic. Justice Harlan, in confirming that individual liberty is protected by the U.S. Constitution stated that liberty is not “an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint.” Justice Harlan stated:

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true that in every well-ordered society charged with the duty of conserving safety of its members the rights of the individual in respect of his liberty may at times, under pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

The Court found that the Massachusetts vaccination requirement was justified due the threat of the smallpox epidemic and the enforcement of the regulation was reasonable, likely because the statute would use physical force in vaccinating someone and that the punishment for non-compliance was a $5 fine. The Court was not blind to the notion of government overreach in exerting its authority over individual’s rights and freedoms and offered a cautionary note:

The police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify interference of the courts to prevent wrong and oppression.

Accordingly, this decision stands for the notion that a state, when facing an epidemic that threatens the health of the community, is within its constitutional authority to mandate that all citizens be required to have medicine injected into their body or be subject to a penalty or fine.

What if the state is not confronted with an immediate epidemic/pandemic? Can the state still require people in that state to be immunized? Virginia law requires that all children be immunized in order to attend any public or private elementary, middle or secondary school, child care center, nursery school, family day care home or developmental center. Children in Virginia are required (unless exempted) to provide proof of the following immunizations: Diptheria, Tetanus, & Pertussis; Haemophilus Influenzae Type b (Hib) Vaccine; Hepatitis B Vaccine; Human Papillomavirus Vaccine (HPV); Measles, Mumps, & Rubella (MMR) Vaccine; Pneumococcal Vaccine; Polio Vaccine; and Varicella (Chickenpox) Vaccine. In addition, Virginia mandates that any person/student seeking to enroll or enrolled in a public college or university be vaccinated against certain diseases. As these laws related to vaccination or immunizations requirements show, Virginia mandates that people in Virginia, with certain, limited exemptions, submit themselves or their children to a fairly invasive process and Virginia courts have not ruled these laws to be in violation of an individual’s liberty.

All the above may be true and accurate but what about mandating face masks for people in an indoor public setting? In early June of this year, a lawsuit was filed in Albemarle County against Gov. Northam’s face mask order. The lawsuit claims that the face mask order is in conflict with a Virginia law which makes it a Class 6 felony for any person over the age of 16 to wear a mask to conceal their identity. Virginia Code Section 18.2-422 provides exemptions that, at first look, appear to fall within Gov. Northam’s executive order. Specifically, the law exempts or otherwise does not apply during a time when a “declaration of a disaster or state of emergency by the Governor in response to a public health emergency where the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver.” On March 12, 2020, Governor Northam issued an Executive Order declaring a state of emergency due to the COVID-19. A reasonable reading of the multiple executive orders about a state of emergency, including that wearing a mask is an appropriate response, would arguably mean that Virginia Code Section 18.2-422 is waived at this time and thus a conflict does not exist.

Accordingly, any challenge to Gov. Northam’s executive order mandating the limited wearing of face masks in indoor public settings is likely to fail. As University of Virginia law professor Richard Schragger states, public health orders are generally valid, “[t]here is no individual constitutional right to refuse to wear masks indoors and no general constitutional right for businesses to operate without government restrictions that protect the health, safety, and welfare of the community.”

If you have any questions about this article, or if you need help navigating the intricacies of doing business in the COVID era, please contact Chad Murchison (cmurchison@setlifflaw.com) at 804-377-1270 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.