Nov 11, 2020
Kentucky, along with several other states, now requires citizens to wear masks and gloves at work and to encourage customers to wear masks. The Order, issued by Eric Friedlander, the Secretary of the Cabinet for Health and Family Services, reads as follows:
“Businesses, organizations, and entities must ensure, to the greatest extent practicable, that their employees, volunteers, and contractors wear a cloth mask (a surgical or N95 mask is not required). A business, organization, or entity need not require an employee/volunteer/contractor to wear a mask when masking would create a serious health or safety hazard to the employee/ volunteer/contractor, when the employee/volunteer/contractor is working alone in an enclosed space, or when the employee/volunteer/contractor is working alone in an area with more than six (6) feet of social distancing. Businesses and organizations shall provide PPE at no cost to employees and should offer instruction on proper use of masks and PPE. …. Entities should encourage customers to wear masks, which the entities may provide. Entities may refuse to serve any customer who is not wearing a mask. …. Entities must ensure that employees whose job duties include touching items often touched by others (e.g., credit cards/cash, paper, computers) wear gloves that are regularly replaced. Entities should also follow the applicable CDC, OSHA, or other federal guidelines relating to gloves.”
In addition to the above requirements, there are restrictions on mass gatherings and requirements to social distance. Many people have argued that their constitutional rights are being violated by these orders. But are they correct? Can we be fined or criminally charged for violating the orders?
The first amendment of the US Constitution guarantees all citizens the right to free speech and peaceful assembly. Yet Kentucky law allows the Governor to invoke emergency rights to protect Kentuckians even to the point of suspending some statutes and allows him to order people to disperse from the scene of an emergency. If Governor Beshear can prove a “compelling interest” to take action that limits constitutional rights, and the action is narrowly tailored to solve the compelling interest, then his actions will be deemed Constitutional.
It is likely that the Court would consider the protection of US citizens under a global pandemic to be a “compelling interest”. The bigger question is whether Beshear’s orders are overly broad? The Governor only required mask wearing at work and allowed exceptions for medical circumstances and impracticality. Citizens are not required to wear masks when not working. Religious assemblies were banned unless they could ensure social distancing, but protests were not banned. It appears that Beshear directed his orders at organizations serving the public but did not restrict the public itself.
So what about the protests? Many of the people involved did not wear masks or social distance. Most protested peacefully, although there were physical threats. The protests were allowed to continue until property was damaged or physical altercations took place. This is the point at which the government can curtail the protesting, criminally charge people, and order people to disperse.