This order applies to all passengers, crew, operators and any workers or service providers at transportation hubs like airports, bus or ferry terminals, train and subway stations and seaports.
On January 29, 2021, the Centers for Disease Control and Prevention (CDC) issued a federal public health emergency order requiring all persons to wear a mask over their mouth and nose when traveling into and within the United States. Persons who fail to comply with this order, which took effect February 1, 2021, will be in violation of federal law and could face criminal or civil penalties.
As the COVID-19 pandemic continues throughout the United States, President Joe Biden has taken steps to institute federal mask wearing measures in an attempt to slow the spread of the virus. On his second day in office, Biden issued an executive order directing federal agencies to take immediate action on the issue. In response, the CDC issued its emergency order requiring masks on essentially all forms of transportation to “protect Americans and provide confidence that we can once again travel safely even during this pandemic.” This order was issued under the section of the U.S. Code that authorizes regulatory measures to “prevent the introduction, transmission, or spread of communicable diseases,” 42 U.S.C. § 264, with enforcement tied to multiple statutory and regulatory authorities. While many airlines, bus companies, ride-hailing apps and other transportation services have already implemented their own mask mandates, with this order, employees will now have federal backing as a means of enforcing these rules.
Applicability: Who Must Wear What Where?
This order applies to all passengers, crew, operators and any workers or service providers at transportation hubs like airports, bus or ferry terminals, train and subway stations and seaports. This also includes passengers and drivers of ride-hailing vehicles. The only persons exempted from this mandate are children under the age of 2, those with certain medical conditions and disabilities, and operators and passengers of personal or commercial vehicles. The order also explicitly applies to vaccinated persons and those who have recovered from COVID-19 and have antibodies.
Masks must cover the nose and mouth. Masks may be removed under a few limited circumstances, such as: while briefly eating, drinking or taking medication; while communicating with a person who is hearing impaired; if oxygen masks are required on an aircraft; if unconscious, other than sleeping, or incapacitated; and when necessary to verify one’s identity.
Masks must be worn “while boarding, disembarking, and traveling on any conveyance into or within the United States” as well as “at any transportation hub that provides transportation within the United States.” This order must be followed by all travelers coming into or departing the United States, traveling interstate or traveling completely intrastate. The order does not apply to any state that has already implemented measures that are at the same level of protection or greater than the requirements in the order.
This order is to be enforced by the Transportation Security Administration (TSA) and “other federal authorities and may be enforced by cooperating state and local authorities.” Persons in violation could face up to one year in jail. See 42 C.F.R. § 70.18. However, the CDC notes that while they reserve “the right to enforce through criminal penalties,” they do not intend to rely on these penalties as the primary form of enforcement. Rather, they encourage and anticipate voluntary compliance as well as “support from other federal agencies in implementing additional civil measures enforcing the provisions of this Order.”
Other federal agencies have responded to this call by announcing their support for the CDC and their own intentions to implement Biden’s Executive Order on Promoting COVID-19 Safety in Domestic and International Travel. On January 31, 2021, the TSA issued a press release detailing its implementing guidance on mask wearing throughout the United States’ transportation network. The press release was later updated to disclose TSA’s planned compliance enforcement and fine structuring scheme, stating:
Regarding the civil penalty fine structure for individuals who violate the Security Directive, TSA will recommend a fine ranging from $250 for the first offense up to $1,500 for repeat offenders. Based on substantial aggravating or mitigating factors, TSA may seek a sanction amount that falls outside these ranges. TSA has provided transportation system operators specific guidance on how to report violations so that TSA may issue penalties to those who refuse to wear a face mask.
Responsibilities of Transportation Operators and Employees
Transportation operators and their employees are required to use “best efforts” to ensure masks are worn by all persons throughout their journey. Best efforts include:
- Boarding only those persons who wear masks;
- Instructing persons that federal law requires wearing a mask and failure to comply constitutes a violation of federal law;
- Monitoring persons onboard for anyone who is not wearing a mask and seeking compliance from such persons;
- At the earliest convenience, disembarking any person who refuses to comply; and
- Providing persons with adequate notice regarding these requirements.
With the weight of the federal law, transportation operators finally have an ability to enforce mask wearing on public transportation. Transportation employers should train individual operators in how to safely enforce the mask mandate to avoid those still unwilling to wear a mask from disrupting transportation services.
Employers who are not transportation operators also should consider reminding employees of the new law with regard to any travel they carry out in the course of their employment. By way of example, an employer may wish to inform employees who travel by airplane as part of their jobs that they generally must wear a mask while at the airport and while boarding, on board and disembarking the airplane. There are a continuum of viable options in terms of how detailed this communication should be.
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