As of today, June 28, 2020, the total number of COVID-19 cases in the U.S. is 2,504,175 of which 44,703 are new cases compared to yesterday’s data. The total deaths in the U.S. are 125,484 of which 508 are new deaths compared to yesterday’s data. (www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fsummary.html)
Given the fact that COVID-19 is a global health crisis, does a person have a constitutional or legal right not to wear a mask if the wearing of a mask is mandated? The answer is “no.” State and local government has broad and primary authority to issue orders to protect the health and welfare of the people and control the spread of dangerous diseases within their jurisdictions. The 10th Amendment of the U.S. Constitution, which gives states all powers not specifically given to the federal government, is the source of the authority to take all public health emergency actions, such as setting quarantines, ordering the wearing of masks and business restrictions.
State and local governments are primarily responsible for maintaining public health and controlling the spread of diseases within state borders. The state public health emergency preparedness powers and laws authorizing quarantine and isolation through the state’s health authority vest the governor with the authority to mandate the wearing of masks.
Governor Cooper has issued a state wide mandate that requires most North Carolinians to wear masks in most public settings. This order is based upon the public health officials’ professional opinions that masks can prevent wearers, whether or not they are symptomatic, from spreading the virus to others. So unlike laws which focus the person who uses the protection such as seat belt laws or requiring helmets when riding a motorcycle, the mask requirement protects other persons from the mask wearer. The mask requirement is analogous to anti-smoking laws which are designed to protect those persons in the vicinity of the smoker from second-hand smoke as opposed to the smoker.
Governor Cooper’s statewide mandate supersedes any conflicting city or county from overruling the mask requirement because of the preemption doctrine. The preemption doctrine states that a higher authority of law will displace the law of a lower authority when the two authorities come into conflict. Consequently, cities and counties are not permitted to tell their residents to ignore the mask requirement.
Additionally, an employer can require the wearing of a face mask based on Occupational Safety and Health Administration statutes.1
Beyond the mask mandate, the state as well as the CDC can quarantine and isolate those who refuse test positive and refuse to wear masks and or self-quarantine. N.C. Gen. Stat. § 130A-145, Title 42 of the US Code, The Public Health and Welfare Service Act, Chapter 6A, sec. 264 in the regulations to control communicable diseases.2
So, in conclusion, claims that mask orders are violative of personal freedoms is misplaced. The interest of the state and local authorities as well as employers in maintaining the health and welfare of the residents and workers is paramount.
1 “Employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.”
2 Quarantine or isolation can be imposed for 30 days. The individual so restricted can challenge the order in superior court. The period of restriction can be increased a further 30 days if still necessary for protection of public health by petition to the superior court.( N.C. Gen. Stat. § 130A-41, 130A-45, -45.1, -45.2, -45.3, -45.4, -45.5, -45.6)