TSA Mandates Masks!

Fox Rothschild LLP

Fox Rothschild LLP

Shortly after taking office, President Biden signed an executive order mandating the use of masks on all federal property and for people involved in interstate transportation.  All such orders eventually spawn agency guidance and implementing rules, and this one is no exception.

The TSA has just released a four-page Security Directive providing guidance on the implementation of the face mask requirement for airport operators.  Under the Directive, all airport operators must use their “best efforts” to notify all individuals that federal law requires mask use at all times and that failure to comply is a “violation of federal law” subject to federal penalties.  Operators are also required to confront any person not wearing a mask and ask them to put one on.  If they refuse, the operator is required to “escort them from the airport.”  Similarly, the airport operator is required to ensure that all employees, tenants and vendors comply with the mask requirements.

The Directive still provides some flexibility as to what constitutes a mask.  Medical masks or N-95 masks are not required.  “Masks can be either manufactured or homemade and should be a solid piece of material without slits, exhalation valves, or punctures.”  In addition, the mask must completely cover the nose and mouth and be secured to the head in some fashion.

According to the Directive, the requirement to wear a mask does not apply under the following circumstances:

  1. When necessary to temporarily remove the mask for identity verification purposes.
  2. While eating, drinking, or taking oral medications for brief periods. Prolonged periods of mask removal are not permitted for eating or drinking; the mask must be worn between bites and sips.
  3. While communicating with a person who is deaf or hard of hearing, when the ability to see the mouth is essential for communication.
  1. If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance.

Of these exceptions, the second one is the most likely to cause confusion, as most people have gotten used to not having to wear a mask while seated at a table and eating.  In addition, the rules does not apply to children under the age of 2 or people who cannot wear a mask due to a disability as defined under the Americans with Disabilities Act (ADA).

It should be noted that the ADA exception is very narrowly construed, and only applies to a person:

who cannot wear a mask for reasons related to the disability; who, e.g., do not understand how to remove their mask due to cognitive impairment, cannot remove a mask on their own due to dexterity/mobility impairments, or cannot communicate promptly to ask someone else to remove their mask due to speech impairments or language disorders, or cannot wear a mask because doing so would impede the function of assistive devises/technology. It is not meant to cover persons for whom mask-wearing may only be difficult.

The CDC is expected to further clarify the ADA exception at some time in the future.

Finally, the Directive does contain a preemption provision indicating that state and local laws that are less restrictive are preempted.  However, the Directive goes on to provide that state and local laws that are the same or more restrictive, are not preempted and must be complied with.

So, even if you have gotten your COVID vaccination, don’t forget your mask before you head to the airport.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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