By Scott Bogren

The National Mask-Wearing Mandate for Public Transportation

February 1, 2021

On Jan. 28, representatives from the U.S. Department of Transportation, along with presenters from the Transportation Security Administration (TSA), the Federal Transit Administration (FTA) and the Center for Disease Control and Prevention (CDC), provided insight into how the Biden Administration plans on implementing the public transportation mask mandate signed by the President as an Executive Order on Jan. 21.

On Jan. 31, TSA issued Security Directive 1582/84-21-01. Concurrently, CDC issued its order under Section 361 of the Public Health Service Act, Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs. Officially, the public transportation mask-wearing mandate goes into effect at 11:59 p.m., on Monday, Feb. 1.

As a reminder, CTAA officially recommended all its members adopt mask wearing on the part of employees and passengers last spring when we developed our COVID-19 Recommended Safety Protocols.

Here’s what you need to know.

Whom does this mandate apply?

The Executive Order defines public transportation as, “all forms of public transportation as defined in section 5302 of title 49, United States Code.” Given that definition, CTAA’s Section 5307-funded and Section 5311-funded operating members most certainly are subject to the forthcoming mandate. Right now, we believe some Section 5310 operations (those coordinated with either Section 5307 or 5311 agencies) will likely be included. Basically, if you are moving people, passengers and staff are now required to wear masks.

How will the mask-wearing mandate be issued?

The TSA has issued a Security Directive, CDC has produced its official order. FTA is developing guidance, likely to come in the form of Q&As. For transit systems with questions, FTA has set up an email address – transitmaskup@dot.gov – to collect all inquiries.

What will the Security Directive cover? It requires CDC-approved masks be worn by public transportation personnel (including contractors) and passengers at all times within the system. That means on-board vehicles, in stations, on platforms and at stops (any fixed facility where passengers are picked up and discharged). The Security Directive clearly defines conveyances and facilities covered. Further, the directive requires covered public transportation operators to notify passengers and employees of the requirement. Please note that CDC-approved masks does not mean N95 masks. This mask-wearing mandate will be in place “until further notice.”

Are there other details?

Many. The clearly communicated goal of the Security Directive is to ensure the safety of the traveling public and public transportation employees. Toward that end, public transportation operators will be allowed, and expected, to deny boarding vehicles to passengers not wearing a mask. For someone aboard a vehicle not wearing a mask, having that passenger disembark as soon as practicable is the stated objective. TSA noted that it will have inspectors and enforcement authority, including the ability to levy fines. In cases where an inspector notices passengers or employees not wearing masks, the inspector will notify the transit system. In any instance where law enforcement becomes involved and that causes a significant security concern, TSA will require public transportation operators to report those (hopefully!) rare instances through a reporting system. Both TSA and CDC emphasize that wearing masks on public transportation to reduce the spread of COVID-19 is the clear objective – and that instances where a passenger is denied a trip because they refuse to wear a mask are considered effectively closed and would require no reporting on the part of the transit operator.

Are there any exemptions to the mask-wearing mandate?

Yes. Both the CDC order and TSA Security Directive provide specific circumstances under which the mask wearing mandate does not apply – for example, when communicating with a person with a hearing disability where viewing the mouth is essential for communications.

How does the mandate deal with the Americans with Disabilities Act (ADA)?

Again, both the CDC order and TSA Security Directive provide specific references to people who are exempted from the mandate. One such exemption is for anyone who cannot wear a mask, or who cannot safely wear a mask, because of a disability as defined by the ADA. In response to a question during a conference call over the weekend, CDC said they considered such conditions as the inability to take off a mask or ask someone else to take off a mask as dangerous to the health of the passenger and thus exempt from the mask-wearing mandate. They expected these circumstances to be “very rare.” In further clarification, it was noted that difficult is not the standard for an ADA exemption; dangerous is.

Will a transit system be expected to levy fines against passengers not complying with the mandate?

No. TSA will handle and levy any fines. But please note that TSA has indicated that enforcement elements in the Security Directive are seen as a last resort.

What should a transit system do first?

Begin communicating with all passengers and the community at-large the federal mask-wearing mandate. Both TSA and CDC note that notification of the new requirement needs to be “prominent” and “adequate.” CTAA has requested that the FTA provide communications samples and template and share best practices in notification widely. CTAA recommends immediate notification be made on system web sites, via social media and on signage on vehicles. Further, all transit systems need to be effectively communicating the new mandate to employees and system leadership right away.

How will FTA help rollout this important new mandate?

FTA leadership will be holding listening sessions (stay tuned to CTAA for schedules/links) and Q&A guidance. They’ve set up an email address (transitmaskup@dot.gov) where operators should direct questions. Acting FTA Administrator Nuria Fernandez has participated in the conference calls CTAA has joined over the past few days as have other FTA leaders.

What are CTAA’s initial thoughts?

First and foremost, for the safety of passengers and employees we support the mandate and have been urging all members to do the same since last spring. TSA is applying the same mask-wearing mandate models from the aviation industry. But we are well aware that public transportation brings along a number of unique operating conditions that must be taken into account. FTA is most certainly aware of these conditions and working on these important issues. One obvious and priority concern is placing public transportation drivers into the difficult position of enforcement agents. Another is ensuring that all forms of public transportation have ample supplies of masks to offer to passengers who don’t have one.

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The Community Transportation Association of America (CTAA) and its members believe that mobility is a basic human right. From work and education to life-sustaining health care and human services programs to shopping and visiting with family and friends, mobility directly impacts quality of life.