The Volokh Conspiracy
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Yesterday, the CDC issued an eleven-page order that required people to wear masks "while on conveyances and at transportation hubs." The order does not apply in jurisdictions that have requirements that are equivalent to, or more stringent than, the federal mandate.
Here is a brief summary:
(1) Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States. Persons must also wear masks at transportation hubs as defined in this Order.
(2) A conveyance operator transporting persons into and within the United States? must require all persons onboard to wear masks for the duration of travel.
(3) A conveyance operators operating a conveyance arriving at or departing from a U.S. port of entry must require all persons on board to wear masks for the duration of travel as a condition of controlled free pratique.
The CDC will require "conveyance operators" to use "best efforts" to ensure compliance. In short, no mask, no service.
(4) Conveyance operators must use best efforts to ensure that any person on the conveyance wears a mask when boarding, disembarking, and for the duration of travel. Best efforts include:
- boarding only those persons who wear masks;
- instructing persons that Federal law requires wearing a mask on the conveyance and failure to comply constitutes a violation of Federal law;
- monitoring persons onboard the conveyance for anyone who is not wearing a mask and
- seeking compliance from such persons;
- at the earliest opportunity, disembarking any person who refuses to comply; and
- providing persons with prominent and adequate notice to facilitate awareness and compliance of the requirement of this Order to wear a mask; best practices may include, if feasible, advance notifications on digital platforms, such as on apps, websites, or email; posted signage in multiple languages with illustrations; printing the requirement on transit tickets; or other methods as appropriate.
The order adopts the regulatory definition of "conveyance," with one addition. Rideshare–a relatively new mode of transportation–is embraced within "conveyance."
Conveyance shall have the same definition as under 42 CFR 70.1, meaning "an aircraft, train, road vehicle, [FN5] vessel . . . or other means of transport, including military." Included in the definition of "conveyance" is the term "carrier" which under 42 CFR 71.1 has the same definition as conveyance under 42 CFR 70.1.
FN5: This includes rideshares meaning arrangements where passengers travel in a privately owned road vehicle driven by its owner in connection with a fee or service.
It is less clear that the federal government has authority over privately owned cars that are used for local, intrastate transportation.
Indeed, the definition of "interstate travel" includes intrastate travel:
Interstate traffic shall have the same definition as under 42 CFR 70.1, meaning
"(1): (i) The movement of any conveyance or the transportation of persons or property, including any portion of such movement or transportation that is entirely within a state or possession—
(ii) From a point of origin in any state or possession to a point of destination in any other state or possession; or
(iii) Between a point of origin and a point of destination in the same state or possession but through any other state, possession, or contiguous foreign country.
(2) Interstate traffic does not include the following:
(i) The movement of any conveyance which is solely for the purpose of unloading persons or property transported from a foreign country or loading persons or property for transportation to a foreign country.
(ii) The movement of any conveyance which is solely for the purpose of effecting its repair, reconstruction, rehabilitation, or storage."
And "intrastate traffic" includes:
Intrastate traffic means the movement of any conveyance or the transportation or movement of persons occurring solely within the boundaries of a state or territory, or on tribal land.
Transportation hubs includes a wide range of places, including those limited to intrastate travel, such as outdoor local bus stops:
Transportation hub means any airport, bus terminal, marina, seaport or other port, subway station, terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States.
The mandate includes five exemptions:
- While eating, drinking, or taking medication, for brief periods;
- While communicating with a person who is hearing impaired when the ability to see the mouth is essential for communication;
- If, on an aircraft, wearing of oxygen masks is needed because of loss of cabin pressure or other event affecting aircraft ventilation;
- If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance;' or
- When necessary to temporarily remove the mask to verify one's identity such as during Transportation Security Administration screening or when asked to do so by the ticket or gate agent or any law enforcement official.
Three categories of people are exempted from the mandate:
- child under the age of 2 years;
- A person with a disability who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act. FN9 [This is a narrow exception that includes a person with a disability who cannot wear a mask for reasons related to the disability.]
- A person for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or federal regulations.
I follow travel blogs closely. There are many, many stories about two-year-old toddlers who cannot wear masks. In most cases, the flight attendants look the other way. But in some cases, the flight attendants forcibly remove the families from the flight. Invariably, these removals create a lot of chaos, where people are stuck on the tarmac for extended periods of time. In the past, airlines had discretion. Now, with a federal mandate, there will be a zero tolerance policy. Airlines would be on the hook for potential liability if a two year old fails to weak a mask. Delta airlines, for example, had permitted some young toddlers to skip mask wearing. Now, that leniency goes away. Good luck to parents who need to keep a mask on a two-year-old's face for a three hour flight.