Despite a federal court ruling in April 2022 striking down federal mask mandates, major cities in the United States are keeping them in place amid a new wave of COVID-19 cases raising new considerations for private employers that have implemented workplace mask mandates.

On April 18, 2022, U.S. District Judge Kathryn Kimball Mizelle in Florida struck down the U.S. Centers for Disease Control and Prevention’s (CDC) so-called mask mandate for public transportation and airplanes issued in February 2021. In Judge Mizelle’s 59-page order, she said the CDC exceeded its statutory authority under the Public Health Service Act and failed to provide proper notice and comment in issuing the new regulation.

Following the decision, the Transportation Security Administration said it would stop enforcing its rules “requiring mask use on public transportation and transportation hubs.” Several major airlines dropped their mask requirements for passengers.

However, officials in the country’s two largest cities have doubled down on mask mandates for public transportation. On April 21, 2022, Los Angeles County Department of Public Health said “masking continues to be required” on public transportation in the county “regardless of [passengers’] COVID-19 vaccination status.” That move comes as the Metropolitan Transportation Authority in New York City, which is under the control of the state governor, has also kept in place its mask mandate for subways and buses in the city.

Further, while the CDC has said it is no longer enforcing the mask mandate for public transportation following the order, the agency continues to “recommend that people wear masks in indoor public transportation settings at this time.” The U.S. Department of Justice is also appealing Judge Mizelle’s ruling after the CDC said the mask mandate is “necessary” to protect the public from the spread of COVID-19.

Key Takeaways

While Judge Mizelle’s ruling does not apply directly to most private workplaces, the moves by the major public transportation agencies in Los Angeles and New York City to reinstate or keep mask mandates in place highlights the perceived risks of the COVID-19 pandemic in locations where social distancing may not be possible. Employers may want to continue to review local regulations and the CDC recommendations in setting mask requirements for indoor workplaces.

Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 mandates and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.