How Utah’s new coronavirus restrictions came to be, and why some lawmakers are fuming

(AP Photo/Rick Bowmer, File) In this April 15, 2020, file photo, Utah Gov. Gary Herbert wears a mask during a news conference, in Salt Lake City. Herbert declared a state of emergency, Sunday, Nov. 8, 2020, and ordered a statewide mask mandate in an attempt to stem a surge in coronavirus patient hospitalizations that is testing the state's hospital capacity.

The statewide mask mandate announced by Gov. Gary Herbert on Sunday night has been in the works for more than a week. It is part of a new approach to combating the wildfire-like spread of the coronavirus.

He generally has the support of Utah’s legislative leaders, but the changes aren’t going over well with some lawmakers, who worry the governor has overstepped his bounds.

Herbert accelerated talks on new restrictions shortly after meeting last week with Dr. Robert Redfield, director of the Centers for Disease Control and Prevention, and Dr. Deborah Birx, who is part of the White House Coronavirus Task Force. Those discussions included top Republican lawmakers and medical experts.

The talks included a serious discussion of shutting down schools again and a “targeted” approach to closing some businesses — mostly bars, restaurants and gyms. Those suggestions ran into significant headwinds and did not make it into the final document. Herbert’s new orders require no businesses to close, though bars and restaurants now must stop serving alcohol at 10 p.m.

[Read more: How to navigate Utah’s emergency COVID-19 order: Schools, bars, football and more]

“There’s really no data to show that businesses are the problem when it comes to spreading the virus,” says House Speaker Brad Wilson, R-Kaysville, who was involved in the discussions leading up to the new emergency order.

Senate Majority Whip Dan Hemmert, R-Orem, would not reveal what was discussed in the closed Republican caucus Thursday, but said another closure of schools or businesses would be problematic.

“I’m concerned a line would be crossed if you shut things down again,” Hemmert said.

The governor’s office said shutting down schools was not seriously discussed since Birx and Redfield thought Utah had a good approach toward schools and should keep them open.

The fines for businesses included in the final order are much lighter than what was under discussion. At one point, financial penalties for individuals participating in large gatherings were considered but set aside because the idea raised significant constitutional questions and might be outside the scope of the governor’s emergency powers. Instead, the fines announced Sunday night would be for businesses that failed to enforce the mask mandate. Those fines would be levied by the Utah Labor Commission.

But, even fining businesses is causing heartburn among some lawmakers who were caught off guard by its inclusion.

“I don’t have a problem with asking people to wear a mask, but you don’t need to enforce it with penalties and fines,” Wilson said. “Everyone in my office is wearing a mask, and they would have done it without being told there is a penalty.”

The general support of legislative leaders make it much less likely that lawmakers will call themselves into a special session and potentially override the new restrictions, an ability legislators gave themselves during a special session in the spring.

Republican legislators in the House and Senate were informed about the new emergency order on Thursday when they gathered for their post-election caucus meetings. But they were given few details about what it might contain. Democratic lawmakers were aware that some discussions were happening, but they were not informed about the new order or what it contained until Sunday afternoon, a few hours before it was released.

Not everybody on the Hill agrees with how it turned out. A statewide mask mandate, which will continue for the foreseeable future, and the potential business fines are causing concern. Rep. Phil Lyman, R-Blanding, blasted the new strategy in an email to his colleagues shared with The Salt Lake Tribune. He demanded a special session.

“This is not acceptable. The Legislature has been sidelined through this entire episode,” Lyman wrote. “Please, let’s follow South Dakota’s lead, not California’s.”

South Dakota has taken a more laissez-faire approach to the virus than Utah, implementing few restrictions. It also has a more severe outbreak. More than 100 people there have died from the virus in the first eight days of November.

“I don’t care if we lack the votes to overturn this bogus exercise of authority. I want my vote counted,” Lyman wrote.

However, he may find himself in the minority on the Hill, as more elected officials acknowledge a different approach is needed in the face of the current spike.

“My sense is that these skyrocketing positive infection numbers have dampened the libertarian fervor to a significant degree,” said House Minority Leader Brian King, D-Salt Lake City.

“This is a hard issue,” said Wilson, acknowledging the tightrope the state is walking with this new approach. “We all want what’s best. We want people to be safe.”