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03.09.21

Better Masks Offer Better Protection Against COVID-19 Variants. Governments Should Act Quickly.

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This expert column was written by Katherine Ginsbach and Anastasia Vernikou

SARS-CoV-2 is mutating. More than a year into the COVID-19 epidemic, virus mutations are increasing transmission rates, compounding the opportunities to transform further. Given the ever-expanding risk to population health, governments must continuously monitor the efficacy of current public health regulations, making needed updates to improve the quality and quantity of public masking. This post reviews the early use of mask guidance and mask mandates by countries and looks to see if countries have responded to new variants and new scientific information by updating their mask guidance. It draws on the COVID-19 Law Lab, a database collecting legislation that countries have enacted to respond to the outbreak, which has compiled and published over 700 laws addressing face coverings and masks.

At the beginning of the COVID-19 pandemic, some governments took swift and science-based action to suppress or mitigate the spread of the coronavirus by adopting strong legal and policy frameworks as tools to advance the right to health in a fair and equitable manner and ensure that basic human rights were respected. In doing so they were able to control viral transmission, minimize the mortality rate, protect their most vulnerable citizens, and expedite a faster and more equitable recovery of their economies.

Other countries took precautionary measures to protect individuals from the disease, even as the scientific community was racing to explain the new pathogen and understand its mode of transmission. For instance, at a time when WHO only recommended medical mask usage for medical staff and symptomatic individuals due to insufficient evidence on the effectiveness and efficiency of nonmedical masks in reducing transmission by asymptomatic persons, some countries nevertheless began to adopt policies on facemasks for the general public as early as February of 2020. As transmission data became clearer, WHO issued its first mask recommendation for the general public in June of 2020. Mask mandates, while not sufficient on their own, are a necessary part of a robust public health response. Epidemiological data points to downward trends in infection rates in places that implemented them. While falling infection rates cannot be exclusively attributed to mask mandates, it is clear that governments that took serious and science-based steps to prevent infection, including mask mandates, have seen better disease outcomes than those that didn’t.

Mask wearing has now become commonplace across the world, but the diversity of national approaches, in mandatory versus voluntary face mask rules, enforcement mechanisms (including penalties and fines), technical requirements for face coverings, and when mask rules were introduced is striking. The Mongolian government strongly promoted the use of facemasks, even before the first confirmed case of COVID-19 within its borders, with state inspectors ordering organizations, businesses, and public transportation to only serve those wearing facemasks. In April 2020, as cases were rising globally, Mongolia made facemasks compulsory, with residents in Ulaanbaatar facing a fine for non-compliance. As of November of 2020, Mongolia recorded 346 COVID-19 cases and no local transmission.

As more scientific information regarding airborne transmission of the virus became available, legislation governing facemask guidelines in many countries went from being voluntary, to mandatory, with enforcement mechanisms and penalties for non-compliance. On March 16, 2020, the Vietnamese government required that everyone wear a face mask when going into public spaces, with free masks handed out to those without them at train stations and airports. Those who failed to comply with wearing a mask could receive a fine, and throughout Hanoi shops could deny entry to people without masks. The mask mandate, in addition to other public health measures, meant that on July 25, Vietnam recorded 99 days with no locally transmitted cases.

In April 2020, the European Center for Disease Control recommended the public use of masks. Soon after, Germany implemented a nationwide mask order for those in stores and on public transit, with some areas of the country imposing a large fine for non-compliance. A scientific study in Germany, conducted 20 days after mask mandates took effect, found a reduction of about 45% in new infections. The United Kingdom waited until July 2020 to enact a mask mandate, with Norway, Denmark, and Finland waiting until August 2020 to start recommending the use of a mask in public. Canada has only recommended mask usage at the national level, with the exception of requirements on buses and all rail services. Individual Canadian municipalities have enacted compulsory requirements for wearing masks with a penalty fine. In Ontario, studies found a reduction of 25 to 31% in weekly case growth rates two weeks after mask mandates were implemented, compared to areas without mask mandates.

As SARS-CoV-2 mutates and the scientific literature about the effectiveness of the existing and approved vaccines on the new variants grows, some countries have responded rapidly by changing laws and policies to match. In others, the law has reacted slowly. The new mutations of SARS-CoV-2 highlight this sharp contrast in national approaches—only some countries have responded to these new threats by upgrading their mask guidelines to require surgical grade masks with higher filtering capabilities in enclosed public spaces, which we now know are more effective at preventing the spread of new, more contagious variants.

Austria, for example, recently updated its mask mandate, making medical-grade FFP2 masks (similar to N95 masks in the United States) mandatory on all forms of public transportation, in commercial shops, public buildings, courts, as well as retirement homes and the like. A similar measure was adopted in Germany, with the state of Bavaria leading the way. While in April 2020 Bavaria’s mask mandate required a simple nose and mouth covering without any technical specifications, in December 2020 the Bavarian state government upgraded its face covering mandate to require all guests and visitors of hospitals, inpatient care facilities, and nursing homes to wear a medical grade mask. With the emergence of more contagious strains, this requirement was recently extended to almost all public settings. The KN95/N95/FFP2 requirement now applies to offices, public administration buildings and similar institutions with public trade (e.g., notary offices and law firms), grocery stores, drug stores, gas stations, banks, places of worship and on public transportation as well as on stops and waiting platforms.

In countries where the national government does not have the authority or governing mechanisms to create and implement new public health regulations updating and adopting health guidelines provides an ability for those governments to respond in real time, rather than going through legislative channels. In the United States, for example, where a nationwide mask mandate is not a legally viable option, the only national mask order has been limited to federal lands, buildings, and employees. In that same Executive Order, President Biden recommended but did not require all Americans wear masks. Since the order, the Center for Disease Control has updated their guidelines from simply recommending universal masking to recommending double-masking (i.e., layering cloth and surgical masks) or improving the fit of a single mask. Even though this is not a mandate, and so far, individual American states have not updated their mask mandates accordingly, public officials and agencies have adopted these guidelines through public statements, and by wearing double masks in public themselves.

Even though mask rules have varied from country to country and even within countries, often region to region and town to town, and evidence on the effectiveness of mandatory and voluntary mask wearing is not yet available, we know that masks are a powerful tool to prevent airborne transmission of COVID-19 when used as part of a comprehensive set of public health measures. With new variants posing a more serious threat to the health and well-being of communities around the world, governments should reinforce their commitments to mask-wearing as a key component of a robust response to COVID-19. Ultimately, to prevent future mutations, governments must respond quickly to the best available scientific information by enacting mask mandates or updating their public health recommendations. Improving masking will help to suppress the amount of viral transmission, along with common-sense public health measures like social distancing, testing, and tracing. Governments have the obligation to protect their citizens through embedding the best, and most current, scientific information in their COVID-19 legal and policy response.

Katherine Ginsbach M.S., J.D., is a law fellow at the O’Neill Institute for National and Global Health Law.

Anastasia Vernikou is a law fellow at the O’Neill Institute for National and Global Health Law.

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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