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Published: 05/16/24

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UPDATE: An amended version of the bill discussed in this post became law on June 27 (S.L. 2024-16). The original post describes a version of a N.C. House bill that was approved by the state Senate in May. The House failed to concur in the Senate’s version and a conference committee was appointed to resolve the differences. The conference committee’s substitute bill included a provision allowing any person to wear “a medical or surgical grade mask for the purpose of preventing the spread of contagious disease.” It also included two provisions addressing when a person wearing a medical mask must remove it: (1) upon request by a law enforcement officer, or (2) temporarily for identification purposes when requested by an owner or occupant of the property where the mask-wearer is present. The conference committee’s substitute bill passed both the House and Senate, but was subsequently vetoed by the Governor. On June 27, the legislature overrode the veto and the bill became law.

 

Some individuals have always worn medical masks in public places in North Carolina, either upon medical advice or simply by personal preference. However, the practice was not very common until the spring of 2020, when masks were first recommended and then required in some places as part of the response to the COVID-19 pandemic.

Before 2020, the wearing of medical masks in certain places and circumstances was arguably a violation of long-standing criminal laws that prohibit the wearing of masks, hoods, or other devices “so as to conceal the identity of the wearer.” In May 2020, the legislature amended state law to clearly allow any person to wear a mask “for the purpose of ensuring the physical health or safety of the wearer or others.” G.S. 14-12.11(a)(6). On May 15, 2024, the North Carolina Senate approved legislation that would repeal this provision. The legislation has not yet passed the House, but if it were to be enacted, what would it mean for individuals who wish to wear masks to protect their own health or the health of others in the future?

Current law: Mask-wearing prohibitions and exemptions

Since 1953, North Carolina’s criminal statutes have prohibited the wearing of masks, hoods, or other devices that disguise a person’s face or voice so as to conceal identity in certain places. 

Under these general prohibitions, persons age 16 or older may not wear a mask, hood, or other device to conceal identity:

  • On public ways, such as lanes, walkways, alleys, streets, roads, or highways (G.S. 14-12.7);
  • On or in the premises, enclosure, or house of any other person in any municipality or county of the state (G.S. 14-12.9); or
  • While holding any meeting or making any demonstration on the private property of another, unless the other person gives written permission that is recorded with the register of deeds before the meeting or demonstration (G.S. 14-12.10).

In addition, no person may wear a mask, hood, or other device to conceal identity:

  • On the public property of any municipality, county, or the state (G.S. 14-12.8); or
  • While placing or causing to be placed an exhibit of any kind, specifically including items such as a noose, with the intention of intimidating any person or persons, or preventing them from doing a lawful act, or causing them to do any unlawful act (G.S. 14-12.14).

Violation of G.S. 14-12.14 is a Class H felony. Violation of all of the other provisions cited above is a Class 1 misdemeanor. G.S. 14-12.15

G.S. 14-12.11(a) provides six exemptions to these prohibitions that presently allow the wearing of masks, hoods, or other devices that conceal identity:

  • By a person wearing a traditional holiday costume in season;
  • By a person engaged in a trade or employment where a mask is worn to ensure the person’s physical safety or because of the nature of the occupation, trade, or profession;
  • By a person using a mask in a theatrical production, including use in Mardi Gras celebrations and masquerade balls; 
  • By a person wearing a gas mask that is prescribed in civil defense drills and exercises or emergencies;
  • By a person who is a member or member-elect of a society, order, or organization that is engaged in a parade, ritual, initiation, ceremony, celebration or requirement of the society, order, or organization, provided that permission for the activity has been obtained in advance from the appropriate local governing body; and
  • By a person who is wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others (the health exemption).

There are also exemptions for certain labor organizing functions (G.S. 14-12.11(a1)) and persons operating motorcycles (G.S. 14-12.11(b)).

When the health exemption was added to the law in 2020, a related provision was added to require a person wearing a mask for the purpose of ensuring the health or safety of the wearer to remove the mask upon the request of a law enforcement officer during a traffic stop, or when the officer has reasonable suspicion or probable cause during a criminal investigation. G.S. 14-12.11(c).(1)

House Bill 237: Removing health exemption and increasing criminal penalties

The version of House Bill 237 that the Senate approved would repeal the provision that clearly allows the wearing of masks for the purpose of ensuring the physical health or safety of the wearer or others. A conforming change would also repeal the provision that requires a person wearing a mask pursuant to the health exemption to remove it when requested by law enforcement during traffic stops and criminal investigations.

The bill also would amend North Carolina’s Structured Sentencing Act to require stiffer penalties for a person who wears a mask or other concealing clothing or devices during the commission of a crime.

Implications for individual and public health

If this legislation is enacted, the statute may prohibit people over the age of 16 from wearing medical or similar masks (such as N95s) for health reasons in most public and private places in North Carolina.(2)  While some of the prohibitions are limited to people over the age of 16, the prohibition on wearing masks on public property does not have an age restriction and therefore appears to apply to children as well. 

What would this change to the law mean for individual and public health in North Carolina? If the wearing of medical masks is generally prohibited, would exceptions be allowed for individuals with medical conditions that make them particularly vulnerable to infectious diseases, or for those with infectious conditions that pose a danger to others?

As amended, the law would not clearly provide an exception for any of these circumstances.

That said, it seems likely that an individual with a medical condition that requires masking would be entitled to the protections of the Americans with Disabilities Act (ADA). The ADA requires many public and private entities to reasonably accommodate individuals with disabilities, including some conditions that make an individual more susceptible to infection. Allowing such an individual to wear a mask in a place where it would otherwise be prohibited would likely be a reasonable accommodation. Similarly, laws that protect students with disabilities may require schools to allow some students with disabilities to wear masks (though the protections of these laws may not extend to caregivers or parents). 

What about a person who has an infectious condition that poses a threat to the public health? One potentially relevant fact might be whether wearing a mask in public is a communicable disease control measure. North Carolina law requires all persons to comply with such control measures (G.S. 130A-144(f)). Violating control measures is a Class 1 misdemeanor (G.S. 130A-25, 14-3). It is also a basic principle of public health law that control measures should embrace the least restrictive alternative (see, e.g., G.S. 130A-145(a)). Masking may therefore be the preferred control measure if the alternative would be isolating at home. Still, if nothing in the criminal mask prohibitions allows a person to wear a mask to protect others, a public health official might reasonably conclude that isolation was the least restrictive alternative under state law. (It may also be that the ADA would provide some rights to a person in this situation, but only if the person’s condition was recognized as a disability as defined in that law—a threshold standard that might prove difficult to clear.)

News reports of the legislators’ debates of the issue included statements by some legislators that the proposed change simply returns state law to its pre-covid status, and that common sense would prevent the arrest of individuals with a health need for a mask. Other legislators argued that wearing a medical mask in public would be illegal as a result of the change. Implicit in these remarks are highly practical questions about whether, how, and by whom determinations would be made about who would still be able to wear a mask in public for health reasons without potential legal repercussions.

 

(1) The health exemption initially had a sunset date of August 1, 2020. S.L. 2020-3, sec. 4.3. The legislature subsequently removed the sunset to make the provision permanent. S.L. 2020-93, secs. 2, 3

(2) The statutes’ plain language prohibits wearing masks, hoods, or other devices “so as to conceal identity.” It is not clear whether a mask wearer must have the intent of concealing identity, or whether the mere wearing of a mask that conceals identity is a violation. 

This blog post is published and posted online by the School of Government for educational purposes. For more information, visit the School’s website at www.sog.unc.edu.

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