Draft Legislative Rules Push Masks, Temperature Checks

A small group of lawmakers Friday adopted measures that "highly recommend" and "highly encourage" things like mask use and temperature checks in the Montana Capitol, but stopped short of requiring them.

The panel lawmakers created to have broad authority over responding to COVID-19 in the Capitol held its first meeting five days into the session and the morning after the first lawmaker who had been in the building this week announced he had tested positive for the virus.

Panel chair Sen. Jason Ellsworth, R-Hamilton, at the start of the meeting disputed Democrats' claims the GOP was not doing enough to take the virus' risk seriously. Ellsworth said lawmakers have agreed to substantial changes to hold the session under a hybrid model with remote participation.

"No one, no legislator, no member of the public, has to be in this building if they don't want to be and don't choose to be," Ellsworth said. "All legislators can participate and vote remotely if they want. All committees are accepting public testimony remotely. Being at the Capitol this session is an individual choice."

House Minority Leader Kim Abbott, D-Helena, said the option to not come to the building doesn't mean lawmakers don't need to establish stronger rules for what happens inside the Capitol. 

"Just because we're offering remote access doesn't alleviate our responsibility to have a safe workplace," Abbott said, noting staff, lobbyists, the public, journalists and others also work there.

Friday's draft measures, which were partially adopted with six Republicans voting for them and two Democrats voting no, strongly push people toward mitigation measures like temperature checks and face masks, but do not make them mandatory. There are unmanned temperature checks at the north and south entrances of the Capitol.

"I think every citizen in the state of Montana needs to make a decision at that point whether they have an elevated temperature, whether it's appropriate to be in the building and make that decision," Ellsworth said. He called the draft rules a "launching point" for further debate and refining. The panel meets again Tuesday.

Senate Minority Leader Jill Cohenour, D-East Helena, and Abbott said they wanted to require those mitigations. They also wanted to mandate lawmakers wear masks when in staff work areas, which is again recommended but not required.

Abbott added if the measures weren't mandatory, there were still steps legislative leaders could take to encourage compliance.

"I think we could do a lot as a panel to make 'highly recommended' operationalized," Abbott said, suggesting things like staff at the door offering people masks and posting signs that mask use is encouraged by the panel.

There was disagreement between Ellsworth, Cohenour and Abbott over whether a plan was in place to handle a positive cases like that of Rep. David Bedey, a Republican from Hamilton. A press release announced Bedey's case to the public late Thursday, several hours after he learned of his positive test. 

"The fact that we didn't have a contact-tracer in place, the fact that we didn't have a communications plan in place that was clear, in front of us that everyone knew what to expect and we can hold ourselves accountable to means that we didn't have a plan," Abbott said.

Though there were calls between legislative leaders about Bedey's positive test result, Abbott said lawmakers needed a plan that requires "certain things of members that we know that we can hold people accountable to."

Ellsworth countered that he believed there was a plan that functioned well Thursday.

"To sit here and say we don't have a plan (is) certainly not the case," Ellsworth said. The GOP expected to have everyone communicate to them about positive tests as quickly as possible, which is what Ellsworth said happened with Bedey.

"I look at that as plan well-executed," Ellsworth said.

The draft rules adopted Friday say that any lawmaker diagnosed with COVID-19 is expected to notify leadership immediately. However, there is no language clarifying if or how one party's leadership would tell the other's or the public about the case. Ellsworth did say the rules can include more concrete measures, something he said he agreed needs to be done, adding he thought Democrats had a similar approach in place to the GOP's.

"I know we didn't have unified plan, but we had an individual plan and I would hope that you also have that on your side of the aisle until we can actually come up with a joint plan," Ellsworth said.

Abbott said she wants to require any lawmaker experiencing symptoms of COVID-19 to remove themselves from the Capitol and participate remotely. Cohenour called for surveillance testing.

The Legislature is working with Lewis and Clark County to hire a contact-tracer, though it's not clear when that person is expected to start work. Legislative Services Director Susan Fox said it should be soon.

It was also still not clear in the meeting if in areas outside the House and Senate chambers fall under the rules the lawmakers created for themselves or the public health directives issued by Lewis and Clark County.

While legislators have authority over their chambers, the Capitol and its meeting rooms are public spaces. Cohenour said she ran into a situation this week where a group of 25 or so mostly unmasked people were gathered in close proximity and she didn't know how to move through them.

Another point of disagreement came over if lawmakers who test positive for the virus should be identified by name. Cohenour called it necessary.

"Are we going to make the name public so that the public can make decisions about their health and safety in interacting with the Legislature?" Cohenour asked. " ... There should be enough information for someone to know that they could have been a close contact."

Ellsworth said health care privacy laws would prevent that, but Cohenour said that those laws related only to the relationship between a health care provider and their patient. Ellsworth said it was a good question to ask the Legislature's legal team.