This afternoon, the Pennsylvania Secretary of Health reimposed a masking mandate on all Pennsylvania school entities.  The Secretary of Health has the authority to issue this mandate pursuant to various Pennsylvania laws, including: the Disease Prevention and Control Law, the Administrative Code of 1929, and the Department of Health’s Regulations contained in the Pennsylvania Administrative Code.  The specific provisions of the Order are very similar to the previous masking order that had expired at the end of last school year.  In general, all teachers, students, staff, or visitors within a school entity are required to wear a face covering regardless of vaccination status, subject to certain exceptions contained in the Order.  These exceptions include:

  • Wearing a face covering while working where the face covering would create an unsafe condition;
  • When wearing the face covering would either cause a medical condition or exacerbate an existing condition;
  • In circumstances where it is necessary to confirm an individual’s identity;
  • When working alone and isolated from other people with little or no expectation of in-person interaction;
  • If an individual is communicating with someone who is hearing impaired or where the ability to see the mouth as essential for communication;
  • If the individual is under 2 years of age;
  • When an individual is either engaging in activity that cannot be performed while wearing a mask such as eating, drinking, or playing an instrument or participating in high intensity aerobic activities, including during physical education class, and is able to maintain a physical distance of 6 feet from all other individuals;
  • Notably, students who are participating in sporting events or practices, whether indoors or outdoors, are exempted from wearing a mask.

The Order specifically requires a school entity to enforce the masking requirement regardless of whether the Order is reflected in the school entity’s health and safety plan.  Accordingly, it does not appear that the District must modify their health and safety plan in order to comply with or enforce the provisions of this Order.  Schools are required to post signs noting that face coverings are required by Order of the Secretary of Health in conspicuous locations.  Schools are also required to provide reasonable accommodations for individuals who have a medical condition or disability that makes it unreasonable for the person to wear a face covering.  School entities are specifically instructed not to enforce face covering requirements where valid exceptions exist or if it is unsafe to do so and are prohibited from restraining, using force, or physically removing individuals who refuse to comply with this Order when it would not be otherwise legal to do so.

Additionally, the order prohibits the violation of other laws, including state and federal anti-discrimination laws.  While the Order lists certain exceptions, which are mostly limited to medical and safety reasons, the language referring to antidiscrimination laws may leave the door open for School Districts to receive requests for religious exemptions.  In the event your district receives such a request, our office will need to analyze the particular request.  We are confident that the compelling interest of public health and safety will be accepted and the least restrictive means of wearing masks upheld.  We also do not believe the wearing of a mask meets the definition of a “medical examination, test or treatment” requiring exemption under the school code for religious reasons.

The Order does not impact the obligation of a school entity to comply with Federal requirements for wearing masks on school buses or other such transportation.

This Order will go into effect at 12:01 a.m. on Tuesday, September 7th, just in time for schools to return from the Labor Day Holiday.

Local and State Departments of Health are authorized to enforce the provisions of the Disease Control and Prevention Law and assess penalties against violators of same.  The law provides for civil penalties for the failure to implement and follow an Order issued pursuant to the law.  Those penalties include fines and potential jail time if those fines are not paid.   It is possible that these penalties could be assessed against board members and/or administrators who refuse to implement the provisions of the Order.  Additionally, FAQs promulgated by the Department of Health suggest that board members who intentionally refuse to enforce the provisions of the Order could be subject to liability under the willful misconduct provisions of the Tort Claims Act.  Moreover, both the Pennsylvania Department of Health, and local departments of health where they exist, are empowered to utilize other measures to regulate public health, such as the closure of buildings.  Finally, it is also likely that the Pennsylvania Department of Education could seek to impose professional discipline against educators who willfully violate the provisions of the law.

In order to effectively enforce the provisions of the Order, schools should implement reasonable protocols including providing masks for those students who do not have them, counseling students on the proper wearing of masks, and training staff on conflict management.  School Districts should provide reasonable accommodations to students who refuse to comply with the masking requirement, including the provision of alternative education.  Under applicable public health laws, schools may exclude students who refuse to comply and refuse any offers of alternative education.

This communication provides a general overview of the Secretary’s Order mandating mask wearing in school settings.  Of course, certain fact-specific incidents may arise which would require further legal interpretation of this Order.  If such a situation arises, please contact the attorneys at Maiello, Brungo & Maiello’s Public Sector Law Team for a detailed analysis of any issues you may be facing.

Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.