In a 4-1 ruling today, the Pennsylvania Commonwealth Court declared the “Order of the Acting Secretary of the Pennsylvania Department of Heath Directing Face Coverings in School Entities” (“Masking Order”) void ab initio. The Masking Order, issued on August 31, 2021, directed each person inside a school building to wear a face covering, regardless of vaccination status. 

Challengers argued that the Acting Secretary exceeded her statutory authority and circumvented the requirements set forth in the Commonwealth Documents Law (“CDL”) and Regulatory Review Act (“RRA”) in issuing the Masking Order. The Commonwealth Court agreed. It held that the Masking Order was a regulation that had the force and effect of law because it was a “blanket rule that affects all School Entities in the Commonwealth.” As a regulation, its promulgation was required to be in conformance with the formal rulemaking requirements set forth in the CDL and RRA. These laws require, among other things, agencies to submit proposed regulations to the Independent Regulatory Review Commission for public and legislative comment and proscribe certain time periods pursuant to which proposed regulations either fail or become law. Because the Masking Order was not properly promulgated under the CDL and RRA, the Commonwealth Court decided in favor of Petitioners and deemed the order void ab initio.

The decision comes just two days after Governor Wolf announced that the choice to require face coverings in Pennsylvania’s public schools would likely revert to local leaders in January 2022. We recommend schools consult with their Solicitors about the potential for an appeal and whether or not any changes to their policies should be made at this time.