Some Broader Thoughts on the Demise of Mask Mandates

Since the beginning of 2021, people on trains, buses and planes, and in railway stations, bus depots and airports, have been required, by federal law, to wear masks.  That changed on April 18, 2022 when a Florida federal judge struck down the Centers for Disease Control (“CDC”) rule requiring such masks.  While the Biden administration has announced it is appealing that order, businesses should take note of this ruling and its appeal for a number of reasons, including how they may have to deal with employees and customers relating to mask wearing.

The Decision
The Florida federal judge laid out four main reasons she found the mandate impermissible.  First, she found that the mandate was outside the scope of the power given to the CDC by statute. Second, the judge determined that she need not defer to the CDC’s judgment because the agency went beyond the unambiguous limitations on its power.  Third, the judge faulted the agency for failing to provide an opportunity for public comment on the rule prior to its enactment without sufficient justification for skipping this step in the rulemaking process.  Finally, the judge ruled that the mandate was arbitrary and capricious because she found that the agency failed to provide a “reasoned-explanation” for its decision.

The judge’s order immediately nullified the mandate, allowing travelers, including those passengers on planes at the time the order was issued, to immediately remove their masks.  The Biden administration has already filed an appeal, but it has not sought an order to allow the mandate to remain in effect while the appeal is pending.

Other Mandates
As reported in our previous newsletter, on January 13, 2022, the United States Supreme Court struck down OSHA’s mandate that required masking for certain employees in workplaces with 100 or more employees.  The CDC’s mask mandate is the most recent to fall.  There are still other mandates, including those requiring federal agencies to ensure that federal employees and contractors are vaccinated.  Challengers of the vaccine mandate for federal employees and contractors are making similar arguments to those that judges cited in striking down the CDC and OSHA mandates – including that the executive order exceeds the President’s authority by placing requirements on private businesses.

Of course, various states and local governments have enacted rules regarding vaccines, mask wearing and other safety precautions relating to COVID-19.  Even if all of the federal mandates are overturned or expire, businesses may still be subject to state and local requirements.

Regulated Industries Generally
Recently, a number of courts have made rulings limiting agency authority.  We have seen not only the OSHA and CDC mask mandates be overturned, but also rules issued by agencies imposing eviction moratoriums and restricting cruise ship sailings, among others, struck down.  It remains to be seen whether such rulings mark the beginning of a trend limiting the power of federal agencies to regulate and enforce rules or whether they are unique to the extensive regulations passed in response to the politically charged COVID pandemic.  Whatever the case may be, before a business takes action that could violate a relevant law or potentially applicable regulation, or chooses to ignore an agency’s authority, the business should consult with legal counsel to understand the potential ramifications.

Employee and Customer Objections
Individual businesses may, and some do, still require employees and others to wear masks while inside the business’s premises.  Numerous incidents – some of which became violent – have arisen when employees confronted people who refuse to wear a mask.  It is possible, indeed likely, that such resistance will continue.  Moreover, given the lifting of the federal travel mandate and the OSHA mandate, these objections may become more frequent, and those raising them may become more assured in their position.  Businesses should consider how they intend to deal with such incidents in order to protect their employees and customers, premises, and reputation, especially when the businesses can no longer appease objectors by explaining that they are merely complying with government mandates.  Among other steps, businesses may want to consider:

• Setting a policy regarding how these situations will be handled, including identifying steps to be taken, specific people to deal with incidents, and when police should be called;
• Clearly communicating rules regarding masks to employees and posting those rules at the doors of the business for customers and identifying options for those that do not want to, or cannot, wear masks;
• Training employees regarding violence prevention, de-escalation, and other relevant customer interaction skills;
• Having video security systems in place and operational to record all incidents so that others cannot edit their own recordings to the business’s detriment;
• Communicating with local authorities to understand how to best contact and interact with them if an incident escalates; and
• Discussing the legal limits of the business’s policies with legal counsel.

FVLD will continue to monitor the appeal of the travel mask mandate ruling, the status of other mandates and rules that may apply to businesses and individuals, and how these rulings may impact businesses in broader ways.  In the meantime, businesses with questions about these types of regulations, requirements and policies should contact legal counsel for guidance.