December 5, 2023

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State, county officials grapple with mask mandates under new law

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Kansas counties shifted gears on mask mandates as Senate Bill 40 became law. Kansas’s largest counties are taking different approaches to mandates under the new law,  which updated the Kansas Emergency Management Act. 

Sedgwick County, the state’s second largest county, voted 3-2 to eliminate its mask mandate. Meanwhile, the state’s most-populous county, Johnson, crafted a local health order mandating face covering in public settings through April 26, and Gov. Laura Kelly announced she will issue a fresh mask mandate on April 1.

It’s an early test of the legal ramifications of the updated law. Kelly signed the legislation on Wednesday. By Thursday morning, it was law.

Under the new law, the legislature can revoke executive orders. And citizens can seek redress for mandates issued as a result of a disaster declaration. Specifically, the law allows parties burdened by an executive order to file a civil suit in district court within 30 days of the order. Courts have 72-hours to respond to the legal action. Unless the mandate is “narrowly tailored” to respond to an emergency and uses the “least restrictive means” available, the new law requires the court to grant relief to petitioners.

There are questions about what exactly “relief” means. 

Cynthia Dunham, attorney for the Johnson County Board of Commissioners, said a court could allow an individual or business to individually opt out of the mandate.

“There was no definition of the relief that may be sought,” Dunham told commissioners. “…it’s possible they could receive damages.”

However, she advocated that Johnson County issue its own mask mandate so business owners can enforce face mask requirements in their establishments.

“Generally, a private business could require a mask, but it would be more challenging to do so without the order in place,” Dunham said.

Sedgwick County rescinds mask mandates

The law change doomed the extension of a mask mandate in Sedgwick County, as commissioners feared swamped courts. Sedgwick commissioners voted 3-2 to rescind the mask mandate.

“For us to tailor a health order that would withstand the standards in Senate Bill 40, we have to be very careful how we word it. The latest health order, in my opinion is much too broad and does not do a good job of being narrowly focused,” Sedgwick Commissioner Jim Howell said.

Sedgwick County is one of many counties rescinding or eliminating health orders related to the pandemic. In the last week, Reno County and Harvey County dropped mask mandates as well. 

Wichita’s mayor, Brandon Whipple, announced the largest city in Sedgwick will explore adopting a mask mandate after Sedgwick officials rescinded the mandate. 

Johnson County adopts local mask mandate

Johnson County Commissioners issued a local health order mandating masks and social distancing until April 26, despite the law change. The Johnson County order eliminates some of the restrictions in previous orders. For instance, the new order scratches gathering limits, table seating limits at restaurants, and locker room restrictions at health clubs and gyms.

“What’s been proposed is less restrictive and the least restrictive in regards to public health orders,” Johnson County Chair Ed Eilert said during a meeting on Thursday — the day the new law took effect.

County officials admit challenges in enforcement of previous mask mandates. The new health order lacks an enforcement mechanism as well. 

“We’ve been basing our efforts on education, education, education,” Eilert said.

County sets goals for rescinding mask order

Dr. Samni Areola, director of the Johnson County Department of Health and Environment, announced county public health goals alongside the new mandate. He said when met, the county could use “strong recommendations” rather than mandates for masks. The primary goal includes 50% of those eligible for vaccination in Johnson County receiving one dose of the COVID vaccine. Right now, about 30% received at least one shot.

Secondary goals include reducing the number of cases per 100,000 residents to less than 50 and a percent positivity rate lower than 5%. 

The county stalled at approximately 75 cases per 100,000 for a few weeks. Areola told commissioners the county is at 77 cases per 100,000 as of Thursday. However, the county’s COVID dashboard reports the county incident rate as 74. The percent positivity rate as of Thursday is 2.8%.

Kelly extends statewide mask executive order

Throughout the pandemic, Johnson County Commissioner Janae Hanzlick steadily opposed lifting restrictions. She stopped short of agreeing to rescind mask mandates if the county achieves those metrics.

“(People are) tired of being told they have to wear a mask. If you can do this for one more month out of respect for these people… who have been waiting their turn for a vaccine,” she said. “We’re seeing a light at the end of the tunnel.”

Without action from county commissioners, counties face mask mandates from the state. When she signed the updated emergency law, Kelly announced she plans to extend several executive orders and the state’s emergency declaration. All expire on March 31. A handful, like orders that deferred tax payments and an order that required COVID-mitigation efforts in schools, will expire. However, Kelly will reissue 12 orders, including the statewide mask mandate, on April 1. The new expiration date is May 28.

Unlike previous orders, however, legislators can revoke Kelly’s orders in one of two ways. Majority votes in both chambers for a concurrent resolution revokes the order. Or, if the legislature is adjourned for three or more days, a majority of the Legislative Coordinating Council can thwart an executive order. And State legislative leaders announced Wednesday they will reject a mask mandate.

“Should the Governor issue any new executive order which imposes an undue burden on the people of Kansas, including an unnecessary new mask mandate, rest assured the Senate will take immediate action once we receive the order,” Senate President Ty Masterson said in a press release.

Dan Hawkins, House Majority Leader, said the House will take similar steps.

“Kansans wanted the Governor’s statewide mask mandate to end long ago, and if the Governor moves forward with her grand scheme, I will work with my House colleagues to take immediate and decisive action,” he said.

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