Answering your legal questions about Ohio's mask mandate

Posted at 6:00 PM, Jul 23, 2020
and last updated 2020-07-23 19:45:27-04

Ohio’s statewide masking order will go into effect at the exact moment this article publishes Thursday night. Almost every person in Ohio will be required to wear a mask in public spaces, including the insides of stores, workplaces and in outdoor settings where social distancing is not possible.

People are exempt if they are under the age of 10, have disabilities that prevent them from putting on or taking off a mask on their own, or if they are communicating with a person who has disabilities that might prevent them from understanding through a mask.

What’s the legal precedent for orders like this in Ohio? Should you trust the constitutional scholars discussing exemptions on Facebook? WCPO took viewers’ social media questions straight to a legal expert: Ken Katkin, who teaches at Chase College of Law.

Is this a real law? Doesn’t the legislature have a say in orders like this?

Katkin said he understands the confusion surrounding the masking order, which was issued by the Ohio Department of Health and Gov. Mike DeWine — not passed by the Ohio General Assembly.

“It seems like, to a lot of people, like the governor may be getting out in front here and making up the laws at the same time he’s enforcing them,” he said.

However, the standing law governing the health department’s powers — enacted in 2004, last updated in 2013 — grants it broad authority to issue orders of the kind that have defined the state’s COVID-19 response since March.

From the Ohio Revised Code: "The department may make special or standing orders or rules for preventing the use of fluoroscopes for nonmedical purposes that emit doses of radiation likely to be harmful to any person, for preventing the spread of contagious or infectious diseases, for governing the receipt and conveyance of remains of deceased persons, and for such other sanitary matters as are best controlled by a general rule.”

The law also gives the health department “supervision of all matters relating to the preservation of the life and health of the people,” including creating, modifying and ending quarantines.

“That’s a statute that already exists, that the legislature already enacted, and that’s the statute that the director of health in Ohio has relied on,” Katkin said.

Ohio House Republicans in May attempted to change the law and limit the health director’s powers, but failed. The proposed change would have made all health department orders effective for only 14 days unless approved by a committee. DeWine publicly opposed the change and described it as legislation that would severely limit non-COVID-related orders far into the future.

“This bill … is not workable even if you would support the bill,” he said on May 7. “It would say that anybody in the state of Ohio could file a suit (objecting to an order). It gives no standard for the court, really, to follow. Anybody could file a suit, and we could be in any court, and we would have courts deciding these health issues, and we could have dueling courts at the same time. And if we issue orders to reopen, if somebody doesn’t like that, they can take that to court as well.”

Is this illegal under the Fourth Amendment? What about the Fifth?

“I have heard of that,” Katkin said. “I think people have overly expansive ideas of their rights under the Fourth and Fifth Amendments.”

Katkin said both amendments offer very specific protections that would not be relevant in the case of a mask order.

The Fourth Amendment provides protection from unreasonable search and seizure, and it requires that officials performing either have probable cause to do so.

The Fifth Amendment specifically governs criminal proceedings and outlines the need for due process, prohibits double jeopardy, allows suspects to refrain from self-incrimination and requires that high-level indictments come from a grand jury.

HIPAA means no one can ask me whether I have a medical condition when I’m not wearing a mask, right?

HIPAA — the Health Insurance Portability and Accountability Act — is relatively narrow in scope and does not prevent a business owner, employee or private individual from asking health questions.

Instead, according to the United States Department of Health and Human Services, HIPAA “applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.”

In other words, it prevents your doctor, insurer or other health care providers from disclosing your personal health information without your consent. It also ensures you can ask for a copy of your own health records if you need it, and you can make corrections if you spot an inaccuracy.

It does not mean a business cannot request you wear a mask, or that another person cannot ask if you have a health reason for not wearing one.