Gov. Holcomb has issued Executive Order 20-48 which rescinds the “Stage 5” COVID mitigation order and replaces it with the “Color Coded County Assessment” order. This relies on the State’s color code system where it averages two numbers for each county. The first number is the weekly number of new cases per 100,000 residents in a county. Blue is less than 10 cases per 100,000 residents. Yellow is between 10 and 99. Orange is between 100 and 199. And red is 200 and above. Blue gets you zero, yellow – 1, orange – 2, and red – 3.
The second number is the seven day positivity rate for a county. Positivity rate is number of positive cases divided by number of tests. This is important because a low positivity rate gives you more confidence that you’re identifying most or all of the cases in your community. Blue (0) is less than 5%. Yellow (1) is between 5% and 10%. Orange (2) is between 10% and 15%. And red (3) is above 15%.
You average these two numbers to get your county score/color. Blue for 0 and 0.5, yellow for 1 and 1.5, orange for 2 and 2.5, and red for 3. The executive order requires the Indiana State Department of Health (ISDH) to monitor these metrics as well as hospitalizations, available critical care beds & ventilators, and testing & contact tracing ability. The order also makes some recommendations to citizens: follow CDC guidelines, self-quarantine when sick or having been in contact with someone symptomatic, and be vigilant if you’re in a higher risk category or in contact with such people. Many of the old stage 5 requirements remain in place: Social distancing and masks are part of the order. Masks are not required in private businesses where maintaining distances of 6 feet is feasible. Some exemptions are specifically authorized – among other things, where a medical condition that prevents wearing a face mask. (This is the one the anti-maskers are most likely to abuse by lying.) Masks aren’t required when seated at an establishment to eat or drink. Masks are required at schools for students grade 3 and above as well as all staff members. However, if 6 feet of space can be maintained, masks aren’t required. And, if 3 feet of space can be maintained and students are all facing the same direction, masks aren’t required during in-person instruction time.
The color coded approach will limit the size of social gatherings and events based on the county’s color. Larger social gatherings are permitted but the organizer has to submit a safety plan and have it approved by the local health department. In blue counties, social gatherings can have up to 250 people, yellow counties up to 100, orange counties up to 50, and red counties up to 25. In yellow counties, local officials and health officials are expected to meet regularly to talk about potential actions to decrease the spread of COVID. In orange counties, there is the same expectation. In addition, IHSAA sporting events are limited to 25% capacity. In red counties, local officials are also expected to talk and, in addition, to consider limiting hours of operation for bars and restaurants. There’s a lot of encouragement for red counties: the Governor encourages events to be cancelled, encourages businesses to limit employee congregation in public areas, and encourages restaurants and retail businesses to promote curbside pickup. Senior care center activities must be suspended or cancelled.
(I probably mock the “encouragement” more than I should. Yes, there’s a part of me that wants The Law to take forceful action to compel people to act in a way that won’t spread this deadly disease. But the reality is that the rule of law depends heavily on voluntary compliance. If you have to use force in a high percentage of cases to obtain compliance, your government is in trouble. If our leaders were speaking with one voice on the appropriate actions citizens should take, I think we’d be in better shape than if we have mixed messages even if some of those messages come with legal compulsion.)
The order does come with some enforcement provisions for business. Verbal order to business owner followed by written cease and desist order to business followed by the local department of health issuing an order to close the business. There don’t seem to be explicit enforcement provisions for situations not involving businesses but I presume, for example, the courts could issue injunctions in non-business situations. Also, disaster emergency law under which the Governor is issuing these orders has some general penalty provisions which might come into play even though they aren’t specifically articulated in the order.