AG: Legislature Not Bound By Sununu’s Emergency Mask Mandate

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House plan for sessions Wednesday and Thursday at the NH Sportsplex in Bedford.


BEDFORD – When the 400-member House of Representatives meets in session Wednesday and Thursday it will be the most divided Republicans and Democrats have been – at least in recent memory – after a federal court ruled House Speaker Sherman Packard doesn’t have to offer a remote option for those with disabilities to participate.

The two parties will even have separate entrances to the NH Sportsplex in Bedford where the sessions will be held to keep them as far apart as possible. And especially to keep the Democrats as far away from 97 seats set aside for the Republicans who don’t want to wear a face mask or say they can’t for health reasons, according to updated guidelines released to legislators.

“It’s politics,” said House Minority Leader Renny Cushing, D-Hampton. “There’s a group of Republicans who don’t believe COVID-19 is real and they exercise disproportionate power.” That despite the fact that House Speaker Dick Hinch died from COVID-19 Dec. 9, 2020, one week after he was elected Speaker.

The Republicans do not have to wear masks despite Gov. Chris Sununu’s Nov. 20, 2020, statewide mask mandate, according to the Attorney General’s Office.

“The Governor’s emergency orders, specifically Emergency Order 74 relating to wearing face coverings, do not apply to the Legislature or the Judiciary, which are co-equal branches of government,” said Kate Giaquinto, spokesman for the attorney general, in an emailed response. “The other branches of government created their own rules related to COVID issues and they are following them.  We have no involvement in enforcing their rules.”

Packard insists the sessions will be safe.

“At over 50,000 square feet of floor space, we will have more than double the usable area of the Whittemore Center Arena to spread out and socially distance,” Packard wrote in the House calendar. “We have worked with the Department of Health and Human Services, the State Fire Marshal, Bedford Fire and Police, and the State Police to ensure a risk-mitigated and secure environment for all members and staff in attendance.”

The House communications office updated logistics Tuesday.

Attendees should wear their face mask upon exiting their vehicles in case they are unexpectedly unable to maintain 6-feet of distancing, including while outside of the NH Sportsplex facility. “All General Court staff, media, and any non-Members in attendance are required to wear face masks,” the update said.

“There will be a section for Members who choose to not wear masks and a separate section for Members who are unable for reasons of disability or health conditions to wear a mask. There will be maximum allowable spacing between sections of mask-wearing Members, non-mask wearing Members by choice, and non-mask wearing members for reasons of underlying disability and health conditions,” the update said.

Members in the non-masked section will be required to wear a mask any time they are not at their own seat, and they must use restrooms in building #1, while those wearing a mask must use the ones in building #2.

Cushing, who was one of the seven Democrats who brought the lawsuit seeking to require the House to follow the Americans with Disabilities Act and allow members with disabilities who are at a greater risk of serious illness or death if they contract COVID-19 to participate remotely.

Packard has insisted that there is no rule in place to allow for remote sessions, although House committee meetings are a hybrid of in-person and remote meetings.

Cushing said he will attend the in-person sessions but will take advantage of the Personal Protective Equipment that unions plan to provide.

Members and leaders from the New Hampshire AFL-CIO and its affiliated unions will be distributing Personal Protective Equipment to lawmakers on Wednesday morning ahead of the in-person legislative session at the NH Sportsplex. The PPE will include KN95 respirator masks and KleenGaurd™ disposable coverall suits, according to a union news release. 

“Last week, the New Hampshire AFL-CIO strongly urged our state representatives to provide remote accommodations for lawmakers who have special vulnerability to COVID-19, as defined by the ADA and Rehabilitation Act,” said Glenn Brackett, president of the New Hampshire AFL-CIO. 

“Unfortunately, a federal judge ruled Monday that the House can proceed with in-person sessions this week without providing remote access to medically vulnerable lawmakers. We didn’t want it to come to this. No one should fear going to work. However, distributing personal protective equipment is the least we can do to keep our lawmakers safe,” Brackett said.

Cushing, who is being treated for stage 4 prostate cancer, said the Democrats may have lost the request for the emergency restraining order in court.

“But we really lost last November when the Republicans were elected the majority,” albeit taking power by a small margin. There are 212 Republicans and 186 Democrats in the House.

“It’s a tragedy. This sends a message to all people who have handicaps or are vulnerable that the Republicans don’t care about them,” Cushing said.

The controversy has been brewing over face masks in the House since the State House was closed to the public last year because of the virus. It came to a head November 20, 2020, during a Republican caucus with many maskless members, some of whom reportedly had COVID-19.

The lawsuit filed by disabled Democrats said the Republican caucus failed to inform them of the danger “by this mass exposure when the full House held session on December 2, 2020.”

House Speaker Hinch died from COVID-19 on Dec. 9, 2020. A special testing was later conducted for legislators and staffers after prompting by Cushing. House leaders and Sununu have refused to say how many have tested positive.

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