TSA MASK MANDATE FOR TRANSPORTATION HUBS AND AIRCRAFT TERMINATED – OR IS IT?
April 28, 2022
On April 13, 2022, the U.S. Centers for Disease Control and Prevention (“CDC”) announced its recommendation to extend the 14-month-old federal transportation mask mandate for another 15 days, to May 3, 2022, meaning that travelers aboard airplanes, trains, buses, public transportation and in transportation hubs in the U.S. would be required to wear masks until at least that date. However, in a surprise development, on April 18, 2022, a U.S. District Court Judge struck down the mask mandate in an Order holding that the CDC had exceeded its statutory authority, failed to solicit public comment, and did not adequately explain its decisions. In response, the CDC updated its website, stating that due the court order, the CDC’s January 29, 2021, Order requiring masks on public transportation conveyances and at transportation hubs was no longer in effect and CDC would no longer enforce the Order. The Transportation Security Administration (“TSA”) made a similar announcement, stating that due to the court order it would no longer enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs and planned on rescinding the new Security Directives that were scheduled to take effect on April 20, 2022. Following the ruling, virtually all major U.S. airlines and many U.S. airports updated their policies, making masks optional.
There is still much uncertainty regarding the future of the mask mandate, however. On April 19, 2022, the Biden administration announced that the Department of Justice (“DOJ”) would appeal the Order if CDC requested it do so by deeming the mandate necessary for public health. The next day, CDC requested that DOJ appeal the ruling, citing its desire to keep the mandate intact as well as to preserve its public health powers (i.e., preserve its powers to issue future guidance and mandates), prompting DOJ to file a notice of appeal to the Eleventh Circuit Court of Appeals.
Interestingly, DOJ’s appeal does not change the status of the mask mandate, meaning that the mask mandate is currently not in force and cannot be reinstated at this time unless DOJ requests and is granted a stay of the Court’s ruling, rendering the decision temporarily ineffective. As of publishing of this update, DOJ has not requested nor been granted a stay of the Court’s ruling. Further, there has been little indication that any airlines will move to reintroduce their own mask requirements.
The U.S. District Court’s ruling will not impact the current pre-departure testing requirement, meaning that all passengers aged two and older to the U.S. must still present a negative COVID-19 test taken within 24 hours of entry to the country. Additionally, international carriers that operate to and from the U.S. should also be aware that masks may still be required on certain international flights depending on the arrival country’s requirements. Therefore, international carriers should review any home country mask requirements and continue complying with them if applicable, regardless of the recent decision, unless and until further clarification is received.
We will continue to provide updates on any changes associated with the mask mandate as we receive them.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com 202-659-6622) or Drew Derco (dderco@eckertseamans.com 202-659-6665).
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