Mask or no mask, what is legally required in Pennsylvania?

DISCLAIMER – This is NOT an article about my personal opinion on whether or not masks should be worn.  I have a Juris Doctorate degree, and that degree gives me the ability to provide legal advice.  I do not have a doctorate in the medical field, which means that I should NOT give an opinion on medical issues.  I am also not arguing what the law should be.  My goal is to cut through much of the nonsense that has been spread across social media about that actual law in Pennsylvania regarding the masking mandate.

Masking Is Legally Mandated Under Governor’s Order

The masking requirement stems from the March 6th of 2020 Proclamation of Disaster Emergency that was issued by Governor Wolf in response to the Covid pandemic.  After issuing the proclamation, the Governor thereafter issued executive orders that mandated the wearing of masks.  People are correct that masking is not directly required by a law, but the Governor’s authority to issue the Proclamation is directly from a law.  In the late 1970’s, a law, often referred to as the Emergency Code, was enacted and stated that a “disaster emergency shall be declared by executive order or proclamation of the Governor upon finding that a disaster has occurred or that the occurrence or the threat of a disaster is imminent.”  See 35 Pa.C. 7301(a)(3).  If the Governor issues a proclamation or order, they “shall have the force and effect of law.”  See Pa.C.S. 7301(b).  The law is pretty clear and gives the Governor the power to declare and emergency, and after declaring the emergency, the Governor’s orders shall have the force and effect of law.

Some people have argued that the Governor was wrong to declare an emergency based upon Covid, and they argued that the proclamation and orders were therefore unlawful because there was no disaster.  The Pennsylvania Supreme Court reviewed this issue, and the Court ruled that Covid did constitute a disaster and that the Governor’s decision was lawful under the Emergency Code.

See Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020).  Others argued that the Governor’s orders were unlawful because they infringed on the powers of the legislative branch and thereby violated the principle of separation of powers.  In DeVito, Court rejected the separation of power argument and noted the Emergency Code was a law in which the legislative branch gave up some legislative powers to the executive branch, so the Governor’s issuance of the proclamation and orders was lawful.

The Emergency Code contains a provision that allows for the legislative branch to rescind or cancel the Governor’s proclamation and end the disaster designation.  The legislative branch passed a resolution to end the disaster designation, and the Pennsylvania Supreme Court was then required to review the Emergency Code and determine whether or not resolution must be signed the Governor in order to be effective or if the resolution was effective immediately upon being passed.  The Pennsylvania Supreme Court sided with the Governor and ruled that his signature was required to accept the resolution, and, because the resolution was never presented to him to sign or veto, the resolution was not effective to end the disaster.  See Wolf v. Scarnati, No. 104 MM 2020, 2020 WL 3567269 (Pa. July 1, 2020).  If the legislative branch wants to end the disaster designation and take back the legislative power that they gave to the Governor in the Emergency Code, then they need to follow the rules and obtain a two-thirds majority to overrule the Governor’s veto.

Additional Arguments Against Masking

  1. I don’t have to wear a mask because the Governor didn’t wear one when he attended the protest. Governor Wolf violated his own Order by not wearing a mask and social distancing when he attended the protest.  He was wrong, and the fact that the executive branch is responsible for enforcing laws makes his decision a very awful one.  It is hypocritical to be telling the police to enforce the Governor’s masking order when the Governor himself does not follow his Order.  The fact that someone else breaks the rules does not mean that the rules do not apply.  This argument requires a simple response, one that I often tell my kids, two wrongs do not make a right.
  2. I don’t have to wear a mask if I have a medical condition, so I can lie and say that I have a medical condition; and no one can ask me about the medical issue anyway. This statement is not about the lawfulness of the Order but is instead a way that people rationalize the decision to ignore the law and not wear a mask.  I represent many people that steal things from stores, and when caught, they say that they intended to pay.  They are lying.  Because a person has the ability to lie and possibly avoid following the rules and laws does not negate the legality of the rules.  Lying about a medical condition to avoid being caught for breaking the rules does not mean that the Order is unlawful.  Do you want to be a liar?  When my kids make a mistake and violate my rules, I expect them to accept responsibility and not lie about it.  If you are willing to lie about medical condition, you are showing your kids that it is okay to lie if you disagree with the rules, so don’t be surprised when they lie to you in the future.  If you choose to not wear a mask and your claim is that the law is unlawful, then be honest, say that you disagree with the law, and accept the consequences.  Don’t lie.  Did Rosa Parks lie when she sat in the wrong area of the bus and say that it was just a mistake, or did she intentionally violate the law and fight for justice.
  3. There is no punishment for not wearing a mask, so I don’t have to wear one. The lack of a penalty has nothing to do with lawfulness of the Order.  The fact that the Governor did not include a punishment for non-compliance of his Order is ridiculous.  It is like telling your child to comply with a curfew but telling the child in advance that there are no negative consequences for failure to comply.  People often follow the rules because bad things happen with non-compliance.
  4. I read that some district attorneys stated that the masking order was illegal and could not be enforced. I have not seen any prosecutors say that the Governor’s Order was illegal.  I have read that a few district attorneys took note that the Order did not contain a punishment for violation of the Order (See #3 above), and without that punishment provision, a prosecutor could not enforce the Order.  With criminal laws, punishments are expressly set forth in the written law.  For example, if you are convicted of a DUI, there are mandatory minimum penalties that are imposed, so the prosecutor uses the court system to enforce those penalties.  Because no penalties are included in the Order, the district attorney cannot impose punishments that do not exist.
  5. Businesses can’t force me to wear a mask because they can’t ask me why I am not wearing one. People must remember that many businesses must obtain licenses from the government and are regulated by the government.  Bars need a liquor license to serve alcohol.  Whether restaurants are permitted to be open depends upon compliance with government regulations.  The executive branch issues licenses and regulations.  While the Governor’s Order does NOT impose a punishment provision for people, the Governor has clearly threatened to punish businesses if they fail to enforce his masking Order.  Businesses may not like the masking or social distancing requirements, but they must follow them in order to avoid being fined or even closed.  While the Governor’s Order prevents law enforcement from asking people about masking, that does not prevent private businesses from refusing service unless masks are worn.  People have accepted that businesses have adopted a “no shirts, no shoes, no service” slogan, and customers comply with the rule.  The rule is NOT a law or regulation.  It is something that is simply adopted by most restaurants and respected by customers.  The masking rule is actually mandated by the government, so don’t get mad a business for following the rules.  If you can’t respect the rules by wearing a shirt, shoes, or mask, then stay home. If you disagree with the masking requirement, then call the manager or owner, but do not attack the low level, young employee that is stuck trying to earn a pay check and get through a stressful day.  The low level employee did not make the rules, so don’t take out your anger and frustrations on someone that has no power to change the rules.

Closing Remarks

I am sure that many people think that I am a pro-masker based upon the above discussion.  I wear a mask because I believe that the law mandates it.  I admit that I am not perfect in wearing one in all situations, and I don’t even know the specific requirements because they seem to change every few days.  I try to wear a mask to follow the law as best as possible, and if I am wrong and do not mask when required,  I am prepared to say sorry and accept responsibility.  I will not lie and make up a medical condition, and I will mask up to respect others.  People probably think that I am taking a holier than thou approach, meaning that I think that my way and my position is the best way.  I will leave you with this true story.  I recently picked up my daughters from gymnastics practice at 9:00 p.m., and we headed to my office because I needed to pick up a few things.  To reach my office, I park in a basement spot, walk fifteen feet to an elevator, ride the elevator to the 3rd floor, and my office is five feet from the elevator.  My daughters asked if they needed to wear masks, and I said no.  I rationalized the decision to forgo masking because I don’t like masks, we would not see anyone, and we would be in my office in one to two minutes.  My daughters advised that they would mask up anyway because it was the right thing to do.  My daughters got their integrity from their mother and they obviously have more than me.  They convinced me to do the right thing.  I am NOT attacking people that choose to forgo masking or do not believe in it.  I am telling you what the law is.  If you don’t like the law, then call your local representative.  While those representatives complain about the Governor and his actions, it is there job to rally support and change the law.  The legislative branch gave up their power by passing a law many years ago, and if they don’t like the law that they passed, they need to change it.