Legal Issues Related to Transportation Mask-Wearing Mandates

"On January 21, 2021, President Joe Biden issued an executive order directing federal agencies to require mask wearing in a range of transportation contexts nationwide. In response, the Centers for Disease Control and Prevention (CDC) issued an order (Mask Order) requiring mask wearing on commercial and public transportation. A number of other federal agencies have since taken additional actions to support the enforcement of these mask-wearing requirements. This Legal Sidebar provides a brief overview of the CDC’s Mask Order and the role of other federal agencies in enforcing its requirements. It then discusses a number of related legal considerations for Congress, including the scope of the federal government’s authority to impose mask-wearing requirements in transportation contexts.

CDC Mask Order

The Mask Order requires passengers and personnel on covered modes of transportation and at transportation hubs to wear masks that cover the mouth and nose. The CDC also has issued guidance listing the specific attributes of masks that satisfy CDC requirements. The Mask Order applies broadly across commercial and public transportation, such as aircraft, trains, buses, ferries, and taxis, as well as at transportation hubs, such as airports and train stations. Operators of covered modes of transportation and transportation hubs must use “best efforts” to ensure that individuals comply with the mask-wearing requirements. The Mask Order contains a number of exclusions, such as exempting certain people with disabilities and children under two years of age from the mask mandate. The order does not apply in states or localities that enforce mask-wearing requirements providing “the same level of public health protection” as the CDC’s requirements.

Enforcement

The CDC states that it may enforce the mask-wearing requirements through criminal penalties, but that it “does not intend to rely primarily on these criminal penalties.” Instead, the CDC expects widespread voluntary compliance, as well as support from other federal agencies in implementing civil enforcement measures. A number of federal agencies have now taken such action..."
Transportation mask-wearing