By: Paula E. Pitrak

On February 24, 2021, the Federal Railroad Administration (“FRA”) issued an Emergency Order Requiring Face Mask Use in Railroad Operations (EO 32, Notice No. 1) (“EO 32”) for the immediate implementation of written procedures related to the use of face masks.

To implement Executive Order 13998 – Promoting COVID-19 Safety in Domestic and International Travel (Jan. 21, 2021) that requires masks be worn in various modes of surface transportation, including rail, the FRA determined that an emergency situation involving a hazard of death and personal injury exists requiring its issuance of EO 32.

The FRA provided EO 32 was issued taking into consideration the unique and exigent circumstances presented by the COVID-19 pandemic and due to the lack of uniformity in mask wearing in railroad operations as observed by FRA’s railroad safety inspectors during field inspections and investigations during railroad operations

EO 32 applies to “all persons in or on a freight train, locomotive, high-rail vehicle, crew transportation vehicle, or in a railroad transportation facility, terminal, yard, storage facility, yard office, crew room, maintenance shop, and other areas regularly occupied by railroad personnel.” This Emergency Order, however, does not apply to passengers or railroad carrier personnel in or on a passenger train or in public areas of passenger railroad transportation hubs or facilities; these individuals are required to abide by TSA SD 1582/21-01, “Security Measures – Face Mask Requirements.”

Among other requirements set forth in EO 32, railroad carriers must establish written procedures to manage situations with their personnel who refuse to comply with the mask requirement—which includes removing the person from performing duties in support of railroad operations and making best efforts to remove the person from the railroad transportation hub/facility as soon as practicable.

In addition to those covered by TSA SD 1582/21-01, EO 32 sets forth certain exceptions and exemptions. Exceptions to EO 32 include temporary mask removal: 1) when necessary for identity verification; 2) for brief periods while eating, drinking or taking oral medications; 3) while communicating with a person who is deaf or hard of hearing when the ability to see the mouth is essential for communication; 4) if unconscious, incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance; and 5) when necessary to provide a breath or saliva specimen for required DOT drug and alcohol testing regulations or employer-mandated substance abuse testing programs.

EO 32 exempts two categories of persons from wearing masks: 1) those with disabilities who cannot or cannot safely wear a mask because of a disability as defined by the Americans with Disabilities Act; and 2) people for whom wearing a mask would create a risk to workplace health, safety or job duties as determined by the relevant workplace safety guidelines or federal regulations.

In addition to the civil penalties for individual railroad personnel who willfully violate a provision of EO 32—which may also result in removal of the individual from safety-sensitive service on the railroad under 49 U.S.C. 20111—railroad carriers committing a violation of EO 32 may receive a civil penalty of up to $118,826.00 for each day the violation continues. 49 U.S.C. 21301 and 86 FR 1751 (Jan. 11, 2021).

Various rail industry and labor groups have issued questions to the FRA for clarification regarding various aspects of EO 32, and the FRA’s responses are expected to be published on the Department of Transportation’s Frequently Asked Questions webpage by mid-March.

For more information regarding your company’s compliance with EO 32 and other applicable federal, state, and local employment laws regarding COVID-19, contact Fletcher & Sippel’s Labor & Employment Group.