Following a procedural vote, the Ohio General Assembly enacted a bill that will significantly change the ability of state and local authorities to respond to emergencies. SB 22 passed both chambers but was vetoed by Governor DeWine. The General Assembly overrode the governor’s veto on March 24, 2021, meaning the bill will become effective in June of this year.

The bill is in response to what many in the General Assembly see as overreach by health authorities during the COVID-19 pandemic.  SB 22 has two main components; limitations on the authority of the Governor and limitations on the powers of local health districts. As vaccinations progress and the pandemic appears to be winding down, the bill is unlikely to have a direct impact on this emergency. But many around the state are wondering what impact SB 22 will have on future emergencies which require a response for state and local authorities.

Article IX of the Ohio Constitution grants the governor the power “to act in the event of a disaster within the state.” Similarly, the Ohio Revised Code establishes local and county health districts in Chapters 301, 3707, and 3709. Most of these code provisions were enacted in 1919 by the Hughes-Griswold Act in response to a statewide smallpox epidemic in 1917 and the influenza epidemic of 1918. There are currently 113 health districts in Ohio, which are comprised of a mix of city and general health districts, as well as county boards of health acting on behalf of the Ohio Department of Health. Both the governor and local health districts have been given broad authority to take measures necessary to combat disease and promote public health.

The governor will typically exercise his Article IX authority by declaring a state of emergency. Historically, states of emergency have been declared to mobilize resources in a broad range of situations; this includes ice storms, the 2016 Republican National Convention in Cleveland, and also during the COVID-19 pandemic. SB 22 limits the length of a state of emergency to 90 days. Perhaps most importantly, the bill gives the Ohio General Assembly the authority to review and invalidate any action taken by the governor or department of health under a state of emergency.

SB22 also significantly limits the authority of local health districts. Under current law, these local health districts are responsible for the diagnosis and control of communicable diseases, inspection of the sanitary conditions of schools, and the quarantine of individuals suspected of having communicable diseases. The new law prohibits these local boards from issuing general quarantine orders or other orders which impact business or that require the closure of schools.

What does this mean for local health authorities?

Fortunately, the pandemic appears to be ending, meaning that the limitations on authority are unlikely to have immediate impacts. Additionally, local schools will be on summer vacation when the law takes effect 90 days after passage. However, if there are small outbreaks of the Coronavirus in the future, local authorities will be limited in their ability to respond. SB 22 will also require local health authorities to review their existing emergency response plans and coordination plans to ensure compliance with the new law. Unfortunately, this comes at a time when local health authorities are already working to implement the vaccine rollout and continue the fight against the Coronavirus.

What does this mean for employers?

Because the law gives the General Assembly authority to review and rescind public health orders, changes to existing restrictions are probable in the near future. Most notably, this includes the governor’s mask mandate, which is likely to be rescinded once the law becomes effective. This does not, however, mean that businesses and employers cannot require customers or employees to continue wearing masks. But beyond just masks, employers will now need to carefully track the status of orders issued by state and local authorities to determine whether or not they have been changed or rescinded by the General Assembly, and thus whether or not they are required to abide by them. This introduces significant uncertainty into already complicated situations.

Going Forward

The Ohio Legislative Service Commission, a non-partisan research service, has expressed concern that  the law may be unconstitutional due to the procedural aspects of the law. This mirrors sentiments expressed by Governor DeWine when vetoing the bill earlier this month. Litigation is likely, meaning uncertainty surrounding SB 22 will continue into the foreseeable future.

The attorneys at Fishel Downey will closely monitor the developments surrounding SB 22. If you have a specific question regarding this case, or any other labor matter, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.