On November 16, 2021, the Commonwealth Court terminated the Automatic Stay of the school Masking Order, which allowed the Masking Order to remain in effect until the Pennsylvania Supreme Court ruled on its validity. Now, the Automatic Stay, and thereby the Masking Order, will be lifted on December 4, 2021. The Commonwealth Court’s decision classifies the Masking Order as void ab initio (void from the beginning).
As of December 4, 2021, schools must decide on their own whether to enforce mask wearing moving forward.
On November 10, 2021, the Commonwealth Court ruled in favor of the petitioners (Corman et. al.) and granted their petition seeking an injunction preventing Acting Secretary of the Pennsylvania Department of Health, Allison Beam from enforcing the Masking Order. That same day, the Acting Secretary filed an appeal, which triggered the Automatic Stay allowing the Masking Order to remain in effect throughout the appeal process.
The Court later granted the Petitioners’ Application to Terminate (Eliminate) the Automatic Stay concluding that: (1) the Petitioners are likely to prevail; (2) the Petitioners will suffer irreparable injury without the injunction; and (3) the removal of the Automatic Stay will not substantially harm other interested parties or adversely affect the public interest. In its Opinion, the Court continues to support its prior conclusion that the Acting Secretary failed to comply with the Commonwealth Documents Law and the Regulatory Review Act.
The Court notes that the Regulatory Review Act provides a mechanism for Emergency Rulemaking that would allow the Acting Secretary to request certification that the Masking Order is required to meet an emergency even in the absence of a declared disaster emergency.
The Wolf Administration has until November 22, 2021 to apply for the Emergency Rulemaking Procedure. Once the Emergency Rulemaking Notice is published in the Pennsylvania Bulletin, the mask mandate could then continue in effect until review by the Independent Review Commission of the House and Senate Committees.
The Acting Secretary’s position is that the Disease Control Law grants authority to “carry out the appropriate control measures to control diseases.” The Court continues to not be persuaded by this argument and, thus, granted Petitioner’s Application to Termination (Eliminate) the Automatic Stay. The Automatic Stay will be lifted upon the next publication of the Pennsylvania Bulletin on Saturday, December 4, 2021.
Bottom Line for Schools
Legally, the bottom line of all these confusing and seemingly contradictory court orders, is that the Masking Order of September 7, 2021, remains in effect until at least December 4, 2021.
If Governor Wolf pursues the Emergency Rulemaking procedure, the Masking Order will remain in effect until the Pennsylvania Supreme Court decides the issue and the Regulatory Period process takes place, or until January 17, 2022, which is when Governor Wolf has stated he will rescind the Masking Order. It will then once again be up to school boards to decide whether to implement a mask mandate.
Schools should consider past guidance from the Commonwealth and the CDC when deciding their next steps. Presumably, it should be known by November 22 whether the mask mandate will extend beyond December 4.
The PA Supreme Court has scheduled to hear arguments on this matter December 8, 2021.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.
