How States Are Blocking Local Authority to Protect Public Health

We stand with the cities, counties, and school districts attempting to protect their community from the spread of COVID-19 as we continue working with local governments around the country to guarantee paid sick leave and protect public health.
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The COVID-19 pandemic has made clear how important cities and local public health agencies are to protecting the health and safety of their communities. These are, ideally, the institutions that are able to respond quickly to local outbreaks and issue guidance and regulations around local needs like mask usage, indoor capacity limits, and how schools can reopen — and stay open — safely. But instead of empowering localities to do just that, some states have chosen to hamstring local authority to address public health issues, a move that will affect their ability to respond to COVID-19 and future public health crises. 

In Florida and Texas, for example, Governors DeSantis and Abbott have issued executive orders prohibiting schools from issuing mask requirements. Parent and teacher groups in both states have sued the governors, arguing in part that the orders create an unsafe learning environment for students, especially for those with disabilities or who cannot personally wear masks. In Tennessee, Governor Lee issued his own executive order allowing parents to opt their children out of mask requirements, essentially making masks optional in schools. Meanwhile, all three of those states are facing skyrocketing COVID-19 cases as schools resume teaching and the Delta variant continues to spread. 

In addition to school districts, states have also targeted local public health agencies. This year, the Florida Legislature passed a bill not only limiting the authority of public health departments but also allowing the Governor to unilaterally override local emergency public health measures. Indiana went so far as to prohibit local public health officials from issuing emergency disease prevention measures that are more stringent than the State’s. 

Finally, some of these anti-public health measures target individuals and businesses. Montana, for example, passed a law preventing individuals and businesses from “discriminating” on the basis of vaccine status. Arizona Governor Ducey has prohibited businesses receiving state contracts from requiring proof of vaccination to access services. And Florida Governor DeSantis issued an executive order forbidding all businesses in the state from requiring customers to provide proof of vaccination. 

Compounding the harm caused by these orders and laws, many of these states already prohibit local paid sick leave requirements, an essential policy that protects working individuals, prevents disruptions in businesses, and lowers the spread of COVID-19 by ensuring workers can stay at home when they or a loved one is sick. Furthermore, access to paid sick leave is  also linked to higher COVID-19 vaccination rates because paid sick leave allows workers to take the time to receive and recover from vaccinations. 

But public health-minded advocates and officials are pushing back against this new wave of preemption. In Texas, several school districts have added masks to their dress codes, which they argue the state has no control over. Cities in the state have also sued Gov. Abbott over his attempted preemption of local mask mandates, and the Texas Supreme Court recently blocked the law while litigation continues. Parents have filed a similar lawsuit in Florida. In Tennessee, a federal judge temporarily blocked the Governor’s executive order after parents of children with disabilities filed a lawsuit alleging that the order violates the Americans with Disabilities Act by endangering the health and education of immunocompromised students. The U.S. Department of Education has expressed similar concerns, telling states with bans on masking requirements that they could be violating the civil rights of students with disabilities.  These communities recognize that the emergency powers exercised by their state governors should be used to improve public health rather than exacerbate an already unprecedented pandemic. 

A Better Balance stands with the cities, counties, and school districts attempting to protect their community from the spread of COVID-19, and we’re working with local governments around the country to guarantee paid sick leave and protect public health. In our work with the Local Solutions Support Center, we have also offered legal research and support to localities interested in expanding rather than limiting local public health authority. This past year has shown everyone how important a return to in-person learning is for children and parents, but achieving that goal is impossible—and frankly, dangerous—without the ability to implement common-sense health and safety measures.

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