Pennsylvania’s Acting Secretary of Health’s August 31, 2021, Masking Order requiring face coverings in school entities is void ab inito.
The Pennsylvania Commonwealth Court decided the narrow legal question of whether the Acting Secretary of Health acted properly in issuing the August 31, 2021, Order (Masking Order), requiring face coverings in school entities, in the absence of either legislative oversight or a declaration of disaster emergency by the Governor.
In a challenge to the Masking Order, the petitioners argued that the Order was void ab initio because it did not rely upon a gubernatorial declaration of disaster emergency and was issued without compliance with established, statutory rulemaking requirements. In response, the Acting Secretary of Health argued that the Masking Order was promulgated pursuant to existing statutory and regulatory authority and, therefore, was not a rule or regulation subject to regulatory rulemaking procedures.
After reviewing the Commonwealth Documents Law, [Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa.C.S. §§ 501-907] (Commonwealth Documents Law) and Regulatory Review Act, Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15 (Regulatory Review Act), governing the process for promulgation of regulations in the Commonwealth, the Commonwealth Court held that the Masking Order constituted a regulation that was issued without complying with the mandatory rulemaking requirements of the Commonwealth Documents Law and the Regulatory Review Act.
The Commonwealth Court’s decision was appealed, and following oral argument, the Pennsylvania Supreme Court upheld the Commonwealth Court’s holding, noting that an opinion would be forthcoming.
Although this ruling does not necessarily mean that the masking mandate will end in all school districts throughout Pennsylvania, it removes the statewide mandate and allows school districts to determine whether to continue with the masking requirements in their district moving forward.
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