DHEC expresses doubt on its ability to create statewide mask mandate

Published: Aug. 25, 2021 at 7:44 PM EDT|Updated: Aug. 25, 2021 at 7:45 PM EDT
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COLUMBIA, S.C. (WIS) - DHEC leadership has encouraged mask-wearing and urged lawmakers to give school districts choice in mask mandates.

The department’s options beyond that get more complicated.

A temporary law in the state budget prohibits school districts from using state funds to enforce a mask mandate.

Governor Henry McMaster and Attorney General Alan Wilson have repeatedly defended the rule, and the question of its constitutionality is playing out in court.

RELATED STORY | SC law on mask mandates in schools faces federal, state, local challenges

DHEC has asked lawmakers to amend the rule, but no action has been taken.

DHEC Director of Media Relations Ron Aiken said state law allows the department to unilaterally act in local emergencies without review by the General Assembly.

He sent the following statement:

“The emergency authority being referenced is, as it is described, specifically for emergency events. It’s important to understand that it was created to allow DHEC to respond quickly to local situations or outbreaks where rapid action is required to prevent immediate, imminent danger to the local population.

Although the situation in many of our K-12 schools, unfortunately, meets this description, the situation in each school district is different, making a statewide order that applies equally to all schools very difficult because the threshold for ‘emergency’ has to apply equally to everyone to be legally valid.

The emergency measures are for specific situations not foreseen by the legislature. In this case, the General Assembly saw and addressed this situation by creating a state law to prevent masking in K-12 schools.

The new data we have seen over the past few weeks is why DHEC took the action of recommending that the Legislature consider revising the Proviso to allow individual school districts, superintendents, and principals to make decisions about requiring masks, in consultation with local and state health authorities. We believe this approach will protect children and others from COVID-19, and very importantly, will help keep children in school and will also maximize parent choice.”

DHEC Public Health Director Dr. Brannon Traxler expressed similar thoughts in her regularly scheduled call with journalists.

“I’m not saying that there’s not imminent danger regarding COVID-19, but in this situation, it would be difficult to apply a statewide order equally to all schools, school districts when again all of them are in different situations,” she said.

She pointed to different community habits.

“You have different levels of mask use, voluntarily even already among different schools and different districts and so you also have different vaccination rates among the students and staff. Those are the two things that immediately come to mind,” she said.

Aiken said the department is not ruling out local action but will be monitoring the situation to determine if it’s needed.

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