SALT LAKE CITY — Gov. Spencer Cox is mulling a pair of potential public health orders to give school districts more tools in their arsenal to clamp down on COVID-19 outbreaks — including allowing the ability to temporarily require face masks at a certain case rate threshold.

The governor has contemplated these potential public health orders not to sidestep the recently passed state law that bans universal face mask mandates, but rather in collaboration with legislative leadership as state officials grapple with the increasingly concerning burdens on hospitals amid Utah's COVID-19 surge, Cox said in an exclusive interview with the Deseret News on Monday.

"The process that is in place is one that requires — demands — collaboration, or we don't get anywhere," the governor said.

Cox said there's no use using emergency powers to issue a public health order if the Utah Legislature is going to override it anyway.

"I have no desire to do something and then have it immediately overturned by the Legislature. That doesn't help anything," Cox said, referring to so-called "endgame" legislation the Utah Legislature approved earlier this year that ended COVID-19 restrictions on state and local levels and limits government officials' ability to issue new restrictions like mask mandates.

Another law also passed earlier this year, SB195, limits durations of public health orders to 30 days and requires legislative approval — whether that's from the Legislature, or city or county councils depending on jurisdiction.

Utah is among five states under investigation by the U.S. Department of Education, which is probing whether statewide prohibitions on universal masking violate the civil rights of students with disabilities,

Cox pitches proposed health orders to legislative leaders

"I'm not going to issue an order that gets overturned. That's silly," Cox said. "It might make a few people happy, but it doesn't accomplish anything."

That's why Cox said he's been in conversations with Senate President Stuart Adams, R-Layton, and House Speaker Brad Wilson, R-Kaysville, about the potential orders, and he and his administration plan to discuss it more in legislative caucus meetings later this week.

"Our goals have not changed. My goals, the goals of our administration, have always been, No. 1, to not overwhelm our health care system, and No. 2, keep kids in school as much as possible. That's absolutely critical."

The Legislature, Cox said, "plays a very important role in that."

"Even if they don't overturn something, it would be dead after 30 days if we didn't have some sort of consensus," Cox said. "And so that's what we're driving towards, getting them the information, the data, and hopefully coming to agreement on how we can accomplish those things: not overwhelm our health care system and keep schools open."

The governor and his administration is considering two public health orders. One would reinforce local health departments and school district's ability to implement a "test to stay" program to help mitigate the spread of COVID-19 — and require adherence to the Utah Department of Health's recommendations on isolation and quarantine.

The second public health order would allow temporarily requiring masks in schools to slow the spread, but only when schools reach a set threshold of COVID-19 cases.

The Utah Department of Health recommends a 1% case threshold for a school with 1,500 students or more, "but they would take 2% if that is easier for the legislature to swallow," Cox wrote to legislative leaders, Wilson and Adams, in an Aug. 18 email obtained by the Deseret News.

"While the endgame bill did some good things, including giving more control to local health departments and local governments, those local entities have no view, responsibility or incentive towards statewide hospital capacity," Cox wrote in that email. "That responsibility rests with me, and under the bill, with you."

'I'm at a loss as to what more we can do'

Cox's team, based on conversations with legislative leaders, the Department of Health, education advisers and State Superintendent Sydnee Dickson, had "worked hard to put something together that would be more palatable for your legislative bodies," Cox wrote in the email to Wilson and Adams, which included files for the proposed orders.

"As always, we are open for changes or other ideas," Cox wrote. "I know none of this is easy and we would all love to avoid it if possible. But I'm at a loss as to what more we can do."

Two days before, on Aug. 16 just after 2 a.m., Cox wrote an email to Wilson and Adams expressing concern about the COVID-19 delta variant surging in Utah and the state's strained hospital system.

"Schools starting back up couldn't come at a worse time," Cox wrote. "The numbers that were reported from Primary Children's about bed space and available resources were alarming. Again, while the Delta Variant doesn't seem to be more dangerous, because it is super contagious, the raw numbers of kids getting sick could rapidly put our pediatric resources at risk."

In that late night Aug. 16 email, Cox asked for ideas or suggestions from Wilson and Adams, writing he was "thinking out loud," and guessed legislative leaders wouldn't "see any support for a statewide mask mandate for schools or even just ages 5-11."

"I honestly don't know the best way to proceed here. I understand the political realities and complexities that you face with your respective legislative bodies. Nor am I interested in a repeat of what played out in Salt Lake County, where I issue some sort of order that is immediately over-ridden by the legislature. I think that division would do more to harm our state with no actual benefit. And so I ask for your counsel and thoughts."

Wilson replied the next morning, Aug. 17, saying he and Adams were in conversations with Lt. Gov. Deidre Henderson. "There are no easy solutions," he wrote, promising follow-up discussions.

Last week, state officials, including Henderson, floated ideas for the potential public health orders in a virtual meeting with school superintendents, legislative leaders and local health officials from across the state.

The PowerPoint presentation from that meeting included slides that spelled out scenarios of projected case counts in K-12 schools with or without a "mask mandate." Without a mask mandate, total school case counts could be more than five times the count from the same time period last year. That's up from 21,054 from Sept. 1 to Nov. 30 in 2020 to 113,781 in that same time frame this year, according to the projections.

The presentation also showed total hospital admissions, without a mask mandate, are projected to increase from 149 total admissions in that time frame last year to 867 total admissions in that time period this year. With a 30-day mask mandate, case counts and hospital admissions are still projected to be up from last year, but not as exponentially, according to the presentation.

Utah's hospital capacity is already strained. Hospital intensive care units across the Intermountain Healthcare system, the region's largest, were at 100% capacity as of last week.

Is there appetite for the orders?

Response to the proposed public health orders was lukewarm. Most superintendents felt school districts' tools already allowed under state law were adequate. Currently, state statute allows health officials — but only with approval from legislative bodies like county councils — to implement mask requirements.

Some counties in Utah have exercised that option: Grand, Summit and Salt Lake counties. However, the Salt Lake County order was quickly overturned by the Salt Lake County Council on a vote of 6-3.

The aim of the public health orders would be to clarify and streamline school districts' options amid COVID-19 outbreaks, Cox said.

"If they're not interested, then that probably doesn't make much sense," Cox said about the feedback from superintendents.

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But that doesn't mean he's scrapped those possible public health orders.

"What I do hope is that there continues to be deep conversations because we are nearing the precipice of overwhelming our health care system," Cox said. "And that's certainly a concern to me."

That's why the governor said the public health orders will be discussed in legislative caucus meetings this week — to involve lawmakers in the deliberations.

"Again, the Legislature has significant authority over this area now, and so they need to understand what that looks like," Cox said. "They need to understand what that means and what the consequences of that can be if cases continue to increase. And I'm also hoping that we'll get ideas. ... If they reject all of the ideas that we have, then I'm hoping that they have some of their own, and we're certainly open to that."

Times have changed, Cox said, since the Utah Legislature passed those laws limiting COVID-19 restrictions.

"When those laws were passed, cases were coming down and vaccines were going up and the delta variant didn't exist," Cox said. "So now this is a different time. And they need an opportunity as legislators to have conversations ... based on set of facts that are very different than they were six months ago."

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