LEGAL Q&A: Masks & Other Requirements

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

From 1900 to 1906, a series of seemingly unconnected typhoid outbreaks plagued wealthy New York families. Typhoid was rare among the upper class, yet entire families were contracting the disease, and many succumbing to its effects. In 1907, George Soper discovered that Mary Mallon, a cook born to a mother infected with typhoid during pregnancy, had worked as a cook for each of the families at the time of their illnesses. Subsequent investigation ascertained that Mary was an asymptomatic carrier of the disease, resulting in the New York City Health Department arresting her as a public health threat and ordered into quarantine. Subsequent court battles, including those after Mary’s release and subsequent refusal to stop acting as a cook, firmly established that, as Cicero wrote, salus populi suprema lex esto (the health of the people is the supreme law).

Today, of course, our asymptomatic carriers have Covid-19. Like Mary, there is no way to tell who is an asymptomatic carrier – they will, by definition, not have a fever, cough, shortness of breath, or any other symptom of the disease. They will present normally and feel fine, but those they come in contact with may get sick and die.

If everyone in the country took reasonable precautions, including refraining from risky activities, we could cut the number of infections to near zero. Instead, we have learned that a great number of people are like Mary – refusing to believe that their personal actions have any consequence with regard to the spread of the disease, and refusing to take any reasonable action to limit their exposure or the exposure of others. This has left government, particularly municipal government, to prove Thomas Paine right, government’s job is to act to restrain our vices.

Q: What can we do on municipal property to promote the safety of our employees, officials, and the public?

A: RSA 41:11-a gives clear authority to the governing body to control the physical property of the municipality, excluding those physical properties controlled by another board. That control includes the ability set reasonable rules for use of the property – rules which must be followed by everyone on the property.

Those rules do have to be reasonable. For example, a mandatory mask rule must allow for people who are unable to wear a mask, e.g. someone on oxygen, or unlikely to be able to comply with the rules, e.g. young children and certain disabled individuals, to still obtain services. It’s simply not reasonable to expect a 4-year-old to keep his or her mask on for any length of time.

Q: What are the property exceptions to the governing body’s authority?

A: RSA 41:11-a carves out several exceptions. The most notable is the public library. That is governed by the library trustees pursuant to RSA 202-A:6. However, Town forests, conserved lands, and recreation areas are the other exceptions listed in RSA 41:11-a; however, town meeting may have delegated authority to another board or body. RSA 41:11-a; RSA 31:112, RSA 35-B, RSA 36-A:4.

Q: What if someone shows us one of a card claiming that they have a “disability” pursuant to the American with Disabilities Act (ADA) and need to be accommodated?

A:  Those cards are fake. The ADA requires that “reasonable accommodations” be made for those with disabilities, but there is no governmental agency which dispenses such cards. Any such claims and subsequent information provided by the individual should be documented and, as necessary, referred to the appropriate prosecutorial authority for potential prosecution.

Examples of reasonable modifications to a face mask policy that have been provided by legal authorities with extensive knowledge of the ADA include:

• Allowing the person to wear a scarf, loose face covering, or full-face shield instead of a face mask;
• Allowing customers to order online with curbside pick-up or no contact delivery in a timely manner;
• Allowing customers to order by phone with curb-side pick-up or no contact delivery in a timely manner;
• Allowing a person to wait in a car for an appointment and enter the building when called or texted; or
• Offering appointments by telephone or video calls.

Q: Do boards and elected officials have to comply with our rules for town property?

A: While the governing body cannot make rules that would interfere with the ability of boards or elected officials from performing their statutory duties, they can make rules which would apply to any boards or elected officials using municipal property. For example, the governing body could require that everyone in town hall wear a face mask (with exceptions), and that would be enforceable. Nothing about a face mask prohibits any board or official from performing his or her duties.

Q: What can we do in response to the calls for a broader mask mandate; one that applies everywhere around town?

A:  The case that NHMA is watching closely is Andrew Cooper v. Governor; City of Nashua, No. 2020-CV-00266. At the time of this writing, it is unclear whether the Superior Court decision affirming the City of Nashua’s authority to require masks be worn on a municipal-wide basis will be appealed to the New Hampshire Supreme Court. If it is, the New Hampshire Supreme Court would be the final say on the legality of such a mandate. Currently, the only opinion which has been issued is on a request for a preliminary injunction.

As it stands, the Court in Cooper affirmed municipal authority to enact mask mandates on two separate lines of authority. The first applies to cities only. That authority is RSA 47:17, XV, which gives cities the power to make any other bylaws and regulations which may seem for the well-being of the city so long as no bylaw or ordinance is repugnant to the constitution or laws of the state.

The second line of authority is the inherent governmental authority known as the “police power.” This power is broad and includes such varied interests as public health, safety, morals, comfort, the protection of prosperity, and the general welfare. The Court found that, in New Hampshire, “municipalities are empowered “to make bylaws for a variety of purposes which generally fall into the category of health, welfare, and public safety.” We would recommend that a municipality look to RSA 147:1 as one of those authorities.

Q: How do we ensure that any ordinance that we are considering meets the needs of the community that it is meant to serve?

A: It is important that the board or body considering the ordinance review the best available evidence from public health authorities. This is where the local health officer becomes vital. The local health officer should be participating in local calls and briefings from the Department of Health and Human Services (DHHS) and other health authorities, such as the Centers for Disease Control (CDC), for the duration of the pandemic, and relaying information learned there to the local Emergency Management Director, governing body, and other relevant municipal authorities. This information is critically important for local decision-making.

It is likely that the rate of community spread will vary throughout the pandemic, and we’ve already seen that happen. In the beginning of July, New Hampshire was among the small number of states that had a low rate of infection yet DHHS Commissioner Shibinette continued to warn that the citizens of New Hampshire needed to continue to take proactive measures in order to avoid the kind of spike in cases that had occurred in New York in April and were beginning to occur across the majority of the rest of the country. Listening to this advice and using it to formulate local ordinances is essential if local officials want to effectively control the pandemic in their communities.

Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.