Virginians now required to wear masks, but enforcement of the new mandate remains unclear

Gov. Ralph Northam. (Scott Elmquist/ Style Weekly)

The consequences of disobeying Virginia’s new mask requirement?

That’s a question for later, according to Gov. Ralph Northam, who announced the new executive order on Tuesday with few specifics on how it would be enforced. 

“It gets into a lot of the legalities of this and can get complicated in a hurry,” he said in response to a question on what would happen to businesses that didn’t implement the directive.

Starting Friday, face coverings will be required inside almost all indoor establishments for Virginians aged 10 and older. But unlike some of Northam’s previous executive orders, the governor said failure to wear a mask won’t carry the risk of a Class 1 misdemeanor — a criminal charge that can come with jail times and fines.

“This is about people’s health, it’s not about locking people up in jail and giving them large fines,” Northam said. “If we were to enforce this through law enforcement, the only authority we have at this time is through a Class 1 misdemeanor, which actually can carry jail time and a large fine. And that’s not what we’re trying to do here.”

The Virginia Department of Health will be responsible for enforcing the new requirement at all public-facing businesses, and the state’s Department of Labor and Industry will govern private offices, according to Clark Mercer, Northam’s chief of staff.

“VDH, just like they inspect restaurants now and have enforceability around restaurants, they would have the ability [to enforce],” Mercer said. “But this is for grossly negligent actors. We’re not talking about someone who forgets to wear their mask.”

In those extreme cases, state agencies could “seek intervention from the courts” or pull business licenses for operators who refused to comply, he added. DOLI was also tasked with crafting new business regulations to “control, prevent and mitigate” the spread of COVID-19, according to the governor’s presentation.

However, those statements don’t mesh with the actual text of the order, which says “any willful violation or refusal, failure, or neglect to comply with this order … is punishable as a Class 1 misdemeanor.” A spokeswoman for the governor did not respond to a question about the apparent discrepancy Tuesday.

The timeline for approving and unveiling standards from DOLI also wasn’t specified, and it’s unclear whether both departments have the manpower to handle additional enforcement. Mercer said the administration was looking into hiring more inspectors, but didn’t have a clear estimate of how many would be required at each agency. 

“We’re still talking about how many more they would need,” he said after the briefing.

The new order followed Northam’s widely panned weekend appearance in Virginia Beach, where he was photographed in crowds without a face covering. Republican members of the Virginia Senate quickly criticized Northam’s “hypocrisy” in a statement on Tuesday, saying that the governor lacked the moral authority to implement the requirement.

“While this governor behaving hypocritically is nothing new, this latest ‘do as I say not as I do’ edict takes his disingenuousness to an entirely new level,” read a statement from Senate Republican leadership. “Requiring Virginia’s businesses to enforce this mandate under threat of action by the Department of Health only adds to the incredible and stifling burdens placed upon them by the Democrat majority and the governor this year.”

Northam apologized for his lapse Tuesday.

“I was not prepared because my mask was in the car. I take full responsibility for that. People held me accountable, and I appreciate that. In the future, when I’m out in the public, I will be better prepared,” he said.

The executive order requires face coverings inside all brick and mortar retail establishments, personal care and grooming businesses, and “places where people congregate,” according to the administration. Masks will also be required on public transportation, in government buildings and inside restaurants — except for when patrons are eating and drinking, Northam said.

Masks won’t be required during exercise, or for residents with health requirements that prevent them from covering their faces. And law enforcement will not be responsible for carrying out the new mandate, he emphasized.

“This is about people’s health,” Northam said. “It’s not about locking people up in jail and giving them large fines.”

Currently, the governor’s emergency powers only extend to the state’s criminal code, Mercer added after the briefing. That gives him the ability to attach criminal — but not civil — penalties to new mandates.

When the General Assembly reconvenes this summer, Northam said he would ask legislators to introduce new legislation allowing him to attach civil fines to emergency orders.

UPDATE: This post has been updated to include information from the text of the governor’s order and additional quotes from his news conference.