Kansas governor requires masks for state employees, stops short of new statewide mandate

Kansas Gov. Laura Kelly and local government leaders recommended mask usage Wednesday following revised CDC guidelines but did not take the sweeping enforceable action announced earlier in the day by Kansas City Mayor Quinton Lucas, who issued a new mask mandate for the city.

Kelly opted only to require masks for state employees and visitors to state buildings in counties with high and substantial transmission of COVID-19, even though a recent court order granted her the power to issue a new 15-day state of emergency and gave local health officers the authority to issue unilateral orders.

The mask requirement won’t involve a new state of emergency. Kelly will instead rely on her pre-existing authority to manage executive branch agencies.

Across the state, local health officers took no immediate action to issue mask orders or impose other rules.

On Tuesday the Centers for Disease Control issued new guidance recommending vaccinated Americans wear masks indoors in areas where there is high or substantial transmission of COVID-19. Much of Kansas would qualify.

COVID-19 cases in Kansas have risen exponentially in recent weeks. The state is averaging 682 cases per day, up 82% from two weeks ago according to the New York Times.

Kelly didn’t issue any new statewide health orders on Wednesday, instead saying her administration is focused on vaccinations.

“We are so focused on getting vaccines into the arms of people we don’t really want to spend a lot of energy thinking about that or diluting our resources in ways that will distract from getting these shots in arms,” Kelly said.

Kelly urged Kansans to get vaccinated and to mask up to protect one another and said the current surge of cases from the delta variant a “self-inflicted problem.”

“The deaths from COVID delta could have largely been avoided with a simple vaccine,” she said.

Speaker of the House Ron Ryckman, an Olathe Republican, criticized the move.

“The Governor is quick to want new mandates. It’s unfortunate her administration wasn’t quick to prevent millions of dollars in unemployment fraud, provide tax relief for working families during the pandemic or distribute vaccines when they were needed most,” Ryckman said.

Julie Swann, a professor at North Carolina State University who studies patterns of COVID-19 disease transmission, said the alteration of emergency powers comes at a time when additional mask mandates may be needed to slow the spread of the delta before students return to the classroom. Mandates, she said, are more effective than recommendations.

“Wearing masks across the population will greatly decrease hospitalizations and it will decrease workforce absenteeism, it will decrease the number of children who miss school. It will greatly improve the ability of children to stay in school and learn,” Swann said. “This fourth surge should not be underestimated.”

Kelly said her administration was operating under the assumption that emergency law was now what had existed prior to the passage of new restrictions but local officials showed confusion over the extent of their powers.

Douglas and Shawnee counties have asked their residents to begin wearing masks indoors again.

Officials in Johnson County released a statement Wednesday that they were monitoring the situation. The County commission is scheduled to meet Thursday and may discuss the issue.

In Wyandotte County an emergency commission meeting is scheduled for Thursday to review recommendations from the county health department. A spokeswoman for the Unified Government said that the commission is the only body able to issue health orders.

However, following a ruling earlier this month, the county health officer is permitted to issue health orders in addition to the commission. On July 15, Johnson County District Judge David Hauber ruled Senate Bill 40, which includes major revisions of emergency management law that restricted local health officers and Kelly, unconstitutional.

In an order Tuesday Hauber ensured that health officers would be permitted to issue unilateral orders and that Kelly would be able to issue an emergency order while Attorney General Derek Schmidt appeals his decision.

Under preexisting law, county commissions have the authority to overturn any order from a local health officer. Kelly would be permitted to issue a new state of emergency.

Attorney General Derek Schmidt is appealing the decision to the Kansas Supreme Court. It could be months before a decision is rendered, but Schmidt could ask the high court to issue a stay on the order while they deliberate.

Rick Levy, a constitutional law professor at the University of Kansas, said that appeals typically take a long time but that he’d expect the court to move quickly to address emergency law as they did in response to a challenge to Kelly’s decision to restrict capacity at churches in the spring of 2020.

“Courts have shown their ability to act pretty quickly in this type of a situation where you have a public health emergency and clarification of the law is essential,” Levy said.

As the state waits on the ruling, Levy said, Kelly and local governments are under no obligation to abide by the rules established in Senate Bill 40. However, any orders they make could be vulnerable to challenges that they’ve violated civil liberties.

“From a legal perspective, playing it safe would likely involve a reluctance to issue broad orders,” Levy said. “Whether you’re governor Kelly or a local government, essentially the less you do the less you can be challenged.”

The Star’s Jonathan Shorman contributed to this report.