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Policing and Public Transportation (2022)

Chapter: B. Compliance with State and Local Face Mask Mandates

« Previous: A. Federal Agencies Orders during the COVID-19 Pandemic Requiring the Wearing of Face Masks when Using Public Transportation
Page 44
Suggested Citation:"B. Compliance with State and Local Face Mask Mandates." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
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Page 44

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44 TCRP LRD 58 On January 31, 2021, after the Acting Secretary of Homeland Security determined that a national emergency existed, the TSA issued a Security Directive implementing the President’s Execu- tive Order and the related order of the CDC. The TSA’s Secu- rity Directive applies to “aircraft, train road vehicle, vessel . . . or other means of transport,”632 as well as transportation hubs and facilities, including bus terminals.633 The Security Directive specifies that an owner/operator notify passengers, “at the time tickets are purchased or when other wise booking transportation and at the time the convey- ance departs it location after boarding passengers,” that refusing “to wear a mask is a violation of federal law….”634 Furthermore, if an individual refuses to comply with an instruction given by the owner/operator with respect to wearing a mask, the owner/operator must: 1. Deny boarding; 2. Make best efforts to disembark the individual as soon as practi- cable; or 3. Make best efforts to remove the individual from the transportation hub/facility.635 On April 30, 2021, the TSA extended the face mask require- ment for all transportation networks, including public transpor- tation, through September 13, 2021636 and later to January 18, 2022.637 On June 10, 2021, the CDC announced that it was amend- ing its Face Mask Order so as not to “require people to wear a mask in outdoor areas of conveyances . . . or while outdoors at transportation hubs.”638 When people are “in indoor areas of conveyances or while indoors at transportation hubs,” they are not required to wear a mask, for example, “while eating, drink- ing, or taking medication for brief periods of time.”639 Notably, an analysis by the Congressional Research Service (CRS) of the statutory authority of federal agencies to issue the foregoing directives concludes that “the scope of federal agen- cies’ existing statutory authority to mandate masks is an open legal question.”640 632 See authority granted by 42 C.F.R. 70.1. 633 TSA Security Directive, supra note 626. 634 Id. at 2. 635 Id. at 4. 636 Id. See National Press Release, Transportation Security Administration (April 30, 2021) (stating that the TSA “is extending the face mask requirement for individuals across all transportation net- works throughout the United States, including at airports, onboard commercial aircraft, on over-the-road buses, and on commuter bus and rail systems through September 13”), https://www.tsa.gov/news/press/ releases/2021/04/30/tsa-extends-face-mask-requirement-airports-and- throughout (last accessed Jan. 31, 2022). 637 Reuters, supra note 628. 638 Centers for Disease Control and Prevention, Requirement for Face Masks on Public Transportation Conveyances and at Transportation Hubs, supra note 625 (emphasis supplied). 639 Id. at 2 (emphasis supplied). 640 Adkins, CRS, supra note 624. On April 18, 2022, in Health Freedom Def. Fund, Inc. v. Biden, 2022 U.S. Dist. LEXIS 71206, at *1, 2 (M.D. Fla. 2022), a federal district court in Florida ruled that the CDC’s However, it is also notable that the FTA amended its Master Agreement to require grant recipients to comply with COVID- 19 face mask requirements.641 The FTA’s Master Agreement ap- plies to all grants, cooperative agreements, and loans authorized by federal public transportation law or administered by FTA and “subjects noncompliant grant recipients to potential FTA civil enforcement actions that may result in the withholding of federal funds.”642 B. Compliance with State and Local Face Mask Mandates At the state level, whether there are also state and/or local face mask mandates, and the degree of success that law enforcement agencies are having in enforcing the mandates, must be deter- mined on a state-by-state basis.643 In the state of Washington, for example, according to the Municipal Research and Services Center (MRSC),644 [w]hile all agencies are required to follow state face mask require- ments, the local board of health and local health officer also have the authority to enact local rules and regulations as are necessary in order to preserve, promote and improve the public health, and to provide for the control and prevention of any dangerous, contagious or infec- tious disease (RCW 70.05.060; RCW 70.05.070). WAC 246-100-070 requires that local law enforcement enforce those orders.645 The MRSC notes also that “the Washington State Constitu- tion, Article XI, Section 11[,] provides broad authority to cities and towns to act in the event of an emergency, stating: ‘Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.’”646 mask mandate exceeded the agency’s statutory authority, as well as vio- lated the Administrative Procedure Act’s requirements for rulemaking by the agency. In granting the plaintiffs’ motion for summary judg- ment, the district court vacated the CDC’s mask mandate and remanded it to the agency. On April 21, 2022, the CDC and other defendants/ appellants appealed the district court’s decision to the Eleventh Circuit, case number 22-11287. On May 31, 2022, the appellants filed their brief. 641 Id. at 2. 642 Id. 643 Kate Mabus, Mask mandates by states: As COVID cases spike, see what the rules are where you live, USA Today, https://www.usatoday.com/ story/news/nation/2021/07/27/mask-requirements-state/8087357002/ (updated Aug. 3, 2021) (last accessed Jan. 31, 2022). An example of a local government’s order on the use of face masks is the St. Louis County Department of Public Health’s face mask order, dated July 26, 2021, a copy of which is included as Item 10 in Appendix A to the digest. 644 MRSC “is a nonprofit organization that helps local governments across Washington State better serve their communities by providing legal and policy guidance on any topic.” https://mrsc.org/Home/ About-MRSC.aspx (last accessed Jan. 31, 2022). 645 Ask MRSC - Coronavirus (COVID-19) FAQs for Local Governments, Emergency Powers Generally, Can a local agency issue an order requiring people to wear face masks in public buildings or public transit facilities? https://mrsc.org/Home/Explore-Topics/Public-Safety/ Emergency- Services/Public-Health-Emergencies/Coronavirus-COVID-19-FAQs. aspx, (Updated June 4, 2021) (last accessed Jan. 31, 2022). 646 Id.

Next: PART VIII Public Transportation Authorities Effective Use of Public Relations, Law Enforcement Organization and Contractual Structures, and Administration of Law Enforcement and Training »
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Compliance with transit-equipment and operations guidelines, FTA financing initiatives, private-sector programs, and labor or environmental standards relating to transit operations are some of the legal issues and problems unique to transit agencies.

The TRB Transit Cooperative Research Program's TCRP Legal Research Digest 58: Policing and Public Transportation provides a comprehensive analysis of constitutional issues and summarizes current laws and practices that apply to policing by public transportation agencies.

Supplemental to the Digest is Appendix A: Agreements, Policies, Reports, and Other Documents Provided by Public Transportation Authorities for the Report.

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