Following a decision by a federal judge decision last week reversing the Centers for Disease Control and Prevention’s (CDC) mask mandate at airports and other places of public transportation nationwide, the agency’s ability to impose future restrictions is in doubt.
In her ruling, U.S. District Judge Kathryn Kimball Mizelle found that the mask mandate exceeded the CDC’s authority under federal public health law, and she offered a narrow interpretation that would limit the ability of the agency to take measures to control the spread of COVID-19 and other airborne diseases. (His opinion points out that the word “sanitization” in the law authorizing CDC regulation does not extend to a mask, which “cleans nothing” and at most “traps viral droplets” but “neither ‘sanitizes’ the person wearing the mask or ‘sanitizes’ the transfer.”) Judge Mizelle also determined that the CDC failed to follow administrative regulation procedures when issuing the warrant.
Most airlines immediately dropped their mask requirements for employees and passengers following the ruling, and major ride-sharing companies followed suit. The Biden administration has appealed the decision, based on the CDC’s assessment that requiring masks on public transportation is necessary to protect public health.
So, while the status of masks on public transport remains uncertain, what mandates are still in place and what should employers do?
Few mask or vaccine mandates remain in the United States as federal, state and local restrictions have largely ended or been eased after COVID-19 cases dwindled following the surge of the Omicron variant. . Businesses are generally free to waive mask requirements, except in certain settings such as healthcare facilities. OSHA’s proposed vaccination mandate for large employers was reversed in January, and the revised CDC masking orientation from February no longer differentiates between vaccinated and unvaccinated individuals. (Instead, the CDC currently recommends masks based primarily on COVID-19 Community Levelsbut not in most indoor settings in areas with low to medium levels of COVID-19 transmission.)
But keep in mind that employers still have a duty to take reasonable steps to protect employees from COVID-19, although the extent of some measures is currently unclear since OSHA has not set update sound orientation for employers who are not yet aligned with the CDC’s revised masking guidelines. For healthcare employers, a permanent OSHA rule on protecting healthcare workers from COVID-19 is coming. In addition, all employers should continue to take precautions, including regular cleaning and requiring sick employees to stay home, and also check applicable state and local requirements.
Meanwhile, Omicron’s BA.2 subvariant is now the dominant strain of COVID-19 in the United States, and infections have increased in recent weeks, especially in the Northeast. Some localities have considered reimposing mask mandates, and many airports and transportation authorities have maintained mask mandates despite the lack of a federal requirement. It is therefore too early to declare that the government mandates are over, but we continue to move in this direction.