How states and localities are enforcing COVID-19 mandates

Caroline La Rochelle, MPH, is a policy and strategy senior associate at PolicyLab at Children’s Hospital of Philadelphia.

Physical distancing (also called social distancing) and the wearing of masks are essential to limiting the spread of COVID-19. Many states and localities have made such measures mandatory, and given the current surge in cases and hospitalizations, policymakers across the country are implementing or reinstating rules surrounding business closures and curfews, mask mandates, and gathering size limitations. However, these mandates have incited controversy and even legal challenges, and leaders have struggled to determine how to best enforce them. As pushback against COVID-19 restrictions continues, it is more important than ever to consider how to enforce these measures.

In order to contextualize findings from COVID-Lab, a county-level COVID-19 forecasting model, PolicyLab has continually reviewed policies in all 50 states, and in 31 major metropolitan areas, using state-level policy tracking resources, reviews of relevant executive and agency orders and scans of local media coverage.

Many strategies are being employed to enforce physical distancing and mask mandates. Because restrictions can be legally complex, and evidence is still lacking on the effectiveness of many policies, it’s really not possible to endorse specific enforcement strategies. Rather, it’s more of a hope that this policy scan might help public health officials, researchers and other stakeholders be informed about the range of approaches officials are utilizing.

Enforcement Challenges

Enforcement of COVID-19 mandates is challenging for many reasons. First, concerns about discriminatory enforcement exist. People of color have long been dispropotionately cited for minor infractions, and early evidence from New York City showed disproportionate rates of summonses and arrests in neighborhoods that were majority Black or Latino. The rights of those with disabilities are also important, and it is difficult to confirm whether someone has a true medical exemption from wearing a mask.

Effective enforcement requires buy-in from those tasked with administering penalties. However, after a summer of protests calling for police reform, law enforcement officials have been reluctant to enforce gathering size limitations, concerned about worsening community relations. Many local law enforcement officials have also refused to enforce state mask mandates, stating reasons including personal opposition, limited staff time and capacity, and violations being so common and time bound that they are impractical to enforce.

Monitoring and fining businesses is typically easier than fining individuals because of existing regulatory mechanisms. However, enforcement through businesses raises its own logistical challenges. Both news stories and survey data have highlighted assaults on employees when businesses try to enforce rules. Different businesses may fall under the purview of different agencies, making coordination difficult. Agencies may also lack the capacity and staff to carry out enforcement, and confusing or ambiguous legal definitions may further complicate their efforts. For instance, officials in both Michigan and Virginia described challenges from the lack of clear, readily identifiable distinctions between bars and restaurants.

Finally, lawsuits may impede efforts to impose and enforce mandates. While state and local governments have broad legal authority to issue mask mandates, limitations to sizes of gatherings and business closures risk running afoul of both state and federal laws. For instance, wedding venues have sued under the Fourteenth Amendment, arguing that they should be treated the same way as restaurants, and gathering size restrictions may infringe on the First Amendment, which ensures rights such as peaceful assembly and the free exercise of religion.

Enforcement Strategies

Despite these challenges, across the country, state and local officials are trying a range of interventions to enforce physical distancing and mask mandates. While the precise effects of these efforts (both positive and negative) have largely yet to be determined, policymakers and researchers should watch and evaluate these methods closely.

Enforcement of individual violators

  • Issuing citations, fines and arrests

Many states and municipalities list potential fines for individuals who violate mandates, but in practice, most locations have little appetite for enforcement of either mask orders or gathering size limitations. Miami has been a prominent exception, using progressively harsher penalties for those who repeatedly violate masking orders, escalating from warnings to fines to arrest. Some California localities have also issued many citations and in some cases have hired private contractors for masking enforcement. In terms of gathering size enforcement, New York City has recently focused on targeting event organizers with hefty fines.

  • Colleges and universities implementing and enforcing rules

Colleges and universities have tried to impose their own restrictions on students, though in many cases, these rules have failed to change student behavior and prevent unauthorized gatherings. Colleges and universities are trying strategies such as warnings, suspensions, evictions from campus housing, voluntary compliance through education campaigns (often codeveloped with students) and behavioral compacts, encouraging self-reporting and reporting from fellow students, monitoring social media to identify violations, close coordination with local law enforcement, and aggressive testing. The effectiveness of these interventions is often unclear, and punitive measures may come too late to prevent widespread transmission.

Enforcement through businesses

  • Leveraging existing regulatory mechanisms

Many states and localities are relying on processes already in place for regulatory agencies. For instance, in many states, departments of health, occupational safety bureaus and liquor control boards are enforcing COVID-19-related safety regulations. Some agencies, such as Ohio’s Liquor Control Commission, are conducting many compliance checks but focusing penalties (e.g., citations and suspending liquor licenses) on the most “egregious” offenders. Montana has just stated that they will take a similar approach, targeting businesses with repeated violations and providing more funding to local agencies so they can conduct more compliance checks.

  • Shifting enforcement of customers who refuse to comply from businesses to law enforcement

Rather than penalizing businesses for the actions of their customers, executive orders and public statements can clarify that businesses are responsible for trying to stop unmasked customers, but that if customers refuse to obey, businesses should call the police. This approach may help relieve the burden of policing from employees, and law enforcement officials have generally expressed more willingness to enforce associated trespassing laws than general mask mandates.

Agency coordination

  • Centralizing reports about violations

Some authorities are trying to streamline reports of violations. For instance, several counties in Wisconsin have online reporting systems, and the Virginia Department of Health is aggregating complaints from a phone hotline and online survey into a centralized database. Systematic data collection and analysis could allow for more strategic enforcement, though some review would still be required to determine which reports are legitimate.

  • Creating interagency task forces to coordinate enforcement of mandates

Interagency task forces could help coordinate enforcement and ensure that reports of violations reach the appropriate regulatory body. For instance, Baltimore County has had a six-agency social distancing task force since March, and Massachusetts organized a 10-agency COVID Enforcement and Intervention Team in July.

Other strategies

  • Mobilizing “compliance ambassadors” and education campaigns

Many government officials have emphasized education and voluntary compliance over punitive approaches, but in order for these approaches to be effective, they will require actual programming and investment. Non-punitive “compliance ambassadors” have been mobilized in places like Las Vegas and Charlotte, N.C., and public education campaigns may also help encourage compliance.

  • Ensuring that orders allow exceptions for fundamental rights

Gathering size limitations may face less resistance, and be more likely to survive court challenges, if they do not appear to infringe on fundamental rights. In order to protect First Amendment rights, California restrictions on gathering sizes have exceptions for faith-based services, cultural ceremonies and protests. Similarly, Connecticut allows religious gatherings and graduations to have higher capacity limits than other private gatherings.

  • Shutting off utilities

In Los Angeles, properties that repeatedly violate gathering size restrictions can have their utilities shut off.

Enforcement of COVID-19 restrictions will likely continue to be challenging. However, by laying out a broad range of approaches being used, stakeholders can identify and study potential interventions to determine which enforcement mechanisms are most effective for their communities.

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