Georgia’s Cities spoke to GMA general counsel Rusi Patel on what cities can legally do in regard to COVID-19 mandates and policies.
GEORGIA’S CITIES: What limitations are there for municipalities in having mask mandates?
RUSI PATEL: During much of the pandemic, Gov. Brian Kemp had provisions in his COVID-19 Public Health Emergency Orders which specifically allowed local governments which had a case positivity rate of at least 100 cases per 100,000 to impose mask mandates. However, Gov. Kemp ceased to extend the COVID-19 Public Health Emergency on July 1. This action turns all decisions on mask mandates back to a local control question, fully. In terms of imposing mask mandates, obviously, the easiest and least likely to face any challenges are mask mandates for city workers and on city property. The issue becomes a little more politically charged when it comes to mask mandates on private property and with private businesses. On Aug. 19, 2021, Gov. Kemp issued Executive Order 08.19.21.03, which states that businesses, establishments, corporations, non-profits, and other venues and entities may voluntarily implement local regulations which were enacted pursuant to emergency powers of the local government. Cities likely have the police power to mandate masks generally though there has not been litigation in Georgia that has borne fruit to prove this point and the governor’s recent executive order may add new wrinkles and considerations to any such legal analysis.
GC: What is the current CDC mask guidance?
RP: The mask guidance from the CDC does change with the situation. Most of the country, including Georgia, is going through a surge of cases, hospitalizations, and deaths right now due to the delta variant. As a result, on July 27, 2021, the CDC began recommending that fully vaccinated people wear a mask in public indoor settings in areas of high transmission.
GC: Does GMA have model policies and ordinances regarding masks?
RP: Yes. Last summer, GMA developed a model policy requiring face coverings in city buildings and a model ordinance requiring face coverings in public spaces. Both of those documents can be found on the GMA webpage covering plans to reopen
GC: Are cities allowed to mandate that employees be vaccinated?
RP: Yes, the U.S. Department of Justice issued an opinion on July 6, 2021, which clearly states that employers, including local governments, may require employees to be vaccinated, even for a vaccine that the Federal Drug Administration (FDA) has approved under an Emergency Use Authorization (EUA). The Society for Human Resources Management (SHRM) has a model mandatory vaccine policy available for members, though non-members can see a version on the SHRM website.
GC: What should be in any mandatory vaccine policy for city employees?
RP: Any mandatory vaccine policy should include provisions to allow for those who are able to provide satisfactory evidence that they qualify for an exemption under the Americans with Disabilities Act (ADA).
Likewise, any mandatory vaccine policy should provide for exceptions for religious reasons.
Both of these considerations are contemplated under Equal Employment Opportunity Commission (EEOC) guidance in great detail, and we would encourage any city seeking to impose a mandatory vaccine policy upon its employees to have its city attorney carefully review this guidance.
GC: Are there alternatives cities might consider to mandating vaccines that might provide incentives to employees to get vaccinated?
RP: Yes. Employers may seek to have policies which encourage but do not mandate vaccines. For example, a city may require that employees who are not vaccinated must provide a certain number of negative tests to the city’s human resources department each week and/or may require unvaccinated employees to wear masks while vaccinated employees may have a choice as to whether to wear a mask. By eliminating a mandate, an employer can circumvent the necessity to have an analysis of religious or medical accommodations. When considering which incentives or disincentives to utilize it would be wise to prioritize those which inherently protect others from possible transmission of the virus.
GC: Are cities allowed to offer financial incentives for people in the community to get vaccinated? How about city employees?
RP: Yes. On July 29, President Joe Biden called upon local governments to utilize federal relief funding to incentivize vaccination, including offering $100 to those who get vaccinated. In the announcement, the President clearly notes that the American Rescue Plan (ARPA) allows for local governments to use those funds for such incentives. Use of these federal funds for such incentives would not violate the Georgia Constitution’s Gratuities Clause because it would be federal funding which is clearly allowed to be used for this purpose.
This article was originally featured in the September/October 2021 edition of Georgia’s Cities Magazine.