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Commonwealth Court Provides Mechanism for Department of Health to Create Emergency Mask Rule with December 4, 2021 Deadline

On Tuesday, November 16, the Pennsylvania Commonwealth Court, upon an Application to Terminate (Eliminate) the Automatic Stay in Corman et al v. Acting Secretary of Health agreed to terminate the automatic stay effective SATURDAY DECEMBER 4, 2021 unless the Department of Health uses its authority for emergency rulemaking.

The Commonwealth Court noted that the Regulatory Review Act provides a mechanism for emergency rulemaking, even in the absence of a declared disaster emergency. The Acting Secretary, on behalf of the Department of Health, has the ability to request certification by the Governor that a regulation is required to meet an emergency. This allows for the immediate adoption of a regulation to meet an emergency, which includes conditions which the Governor finds “may threaten the public health, safety or welfare[.]”P.S. § 745.6(d). The emergency regulation can “take effect on the date of publication,” and remain in effect while its review by the Independent Regulatory Review Commission and the House and Senate Committees takes place. See id.

After providing the Department of Health this explanation of its emergency authority and a roadmap to accomplish the same, the Court noted that the next publication date of the Pennsylvania Bulletin is December 4, 2021 with a closing date (subject to change) of November 22,2021.

What is Required to Keep the Automatic Stay?

To that end, if the Department of Health does not publish an emergency rule in the December 4, 2021 Pennsylvania Bulletin, the automatic stay is terminated. Thereafter, upon Application for a Stay to the Supreme Court, the Department of Health would have to prove a stay was necessary. A stay at this stage is not automatic and is a high burden for the Department of Health to meet as it requires a showing that:

  • The grant of a stay pending appeal is warranted if the petitioner makes a strong showing that he is likely to prevail on the merits,
  • The petitioner has shown that without the requested relief he will suffer irreparable injury,
  • The issuance of a stay will not substantially harm other interested parties in the proceedings, and
  • The issuance of a stay will not adversely affect the public interest.

Effect on the PA School Mask Mandate

 

In the event an emergency rule is not published in the Pennsylvania Bulletin by December 4, 2021, or a legal stay is not entered by the Pennsylvania Supreme Court, the mask mandate will no longer be in effect. Each school district will have the authority to implement its own decision regarding a facial covering policy.

For advice from an education lawyer, contact the team at MBM Law. We provide expert legal advice on a variety of education topics including school boards, PA school mask mandates, school employees and administrators, and more.

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