Yes, disobeying Virginia’s mask order could carry a criminal charge. But Northam appears to be counting on compliance.

Yes, disobeying Virginia’s mask order could carry a criminal charge. But Northam appears to be counting on compliance.
Jay Breneman and his daughter, Anna Grace, browse footwear at Walkabout Outfitter in Richmond, Va., May 16, 2020. Even though some restrictions on businesses have been lifted, "we’re still trying to do everything as smart as we can,” said Jay. (Source: Parker Michels-Boyce/ For the Virginia Mercury)

Timing wasn’t the only thing that set Gov. Ralph Northam’s new mask mandate apart.

When he announced the emergency order on Tuesday, more than a month later than nearby counterparts including Maryland and New Jersey, Northam repeatedly emphasized that enforcement would be different than similar requirements in other areas.

While states like Maryland and Michigan explicitly defined violations as misdemeanor offenses (and, in the case of Maryland Gov. Larry Hogan, tasked law enforcement with carrying out the mandate), Northam said he was taking a different approach by assigning oversight to the Virginia Department of Health.

“This is a matter of public health, and as a result, any enforcement that is needed will be done by our health officials,” he said at a news briefing. “This is not a criminal matter, and our law enforcement, our police, and our sheriffs will not have a role in enforcing this.”

Northam’s chief of staff, Clark Mercer, later added that the governor had taken the option of criminally enforcing the new requirement “off the table.” But the full text of the order, released Tuesday evening, seemed to contradict that reassurance. “Any willful violation or refusal, failure, or neglect to comply” with the mandate would be punishable as a Class 1 misdemeanor, the full document read — an offense that can carry up to 12 months in jail and a fine of up to $2,500.

And at Tuesday’s news conference, both Northam and Mercer seemed to suggest that ultimately the General Assembly, expected to reconvene in Richmond this summer, would pass legislation allowing the governor to issue emergency orders enforceable through civil penalties.

For Northam’s opponents, the backlash was swift. “We don’t appreciate the governor saying there won’t be penalties for individuals,” the Virginia House of Delegates Republican Caucus wrote in a tweet on Wednesday, “then weaponiz[ing] the VDH to sanction businesses already stretched to the max.”

For supporters of the mask requirement, including some of the state’s largest labor unions, the enforcement component of the new emergency order was simply confusing. Some executive members of the Virginia AFL-CIO, a union representing more than 320,000 workers, were concerned that a misdemeanor penalty would disproportionately affect residents who couldn’t access or afford masks, said communications director Destiny LeVere. Others were worried that the new policy lacked the necessary teeth to protect vulnerable workers.

The Virginia Mercury is a new, nonpartisan, nonprofit news organization covering Virginia government and policy.