Businesses, trying to jump-start after lockdown, are reluctant first-enforcers of Virginia’s new mask mandate

June 1, 2020 12:01 am

Signs advertise businesses and restaurants that are still open in the Carytown area of Richmond, Va., May 16, 2020. (Parker Michels-Boyce/ For the 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.

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 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 Northam’s 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,” she 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 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,” 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,” he 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 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, 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.”

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Bob Lewis
Bob Lewis

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 [email protected]