DA: No Change in Guidance to Law Enforcement on School Mask Mandate

On August 31, 2021, the Acting Secretary of the Pennsylvania Department of Health issued an Order “Directing Face Coverings in School Entities” which took effect September 7, 2021.  Yesterday, this Office sent guidance to law enforcement across Lancaster County regarding the internal complaint process for noncompliance and police enforcement of this Order.  We have received several inquiries from members of the public regarding the enforceability of this Order.

Our guidance to law enforcement remained the same as with previous Orders issued in May (where this office specifically advised we will not prosecute any citations for alleged criminal violations of the Governor’s Order) and November (where we reiterated our guidance that the goal should be to gain compliance through engagement and education regarding the need to ensure public safety).  

The Order, which requires masking of those working, attending, or visiting a school entity regardless of vaccination status, unless exceptions apply, also provides as follows:

     5. A School Entity should not:

a. Enforce face covering requirements when there is an exception under Section 3 or if it is unsafe to do so.

b. Restrain, use force, or physically remove, teachers, children/students, staff, or visitors who refuse to comply with this Order when it would not otherwise be legal to do so.

c. Violate other laws, including state and federal antidiscrimination laws.

It is important to note that the Department of Education has issued guidance regarding this Order which can be found here. The guidance issued by the Department of Education refers both school districts and concerned parents to internal policies and procedures for noncompliance and complaints – not law enforcement.                  

The Department suggests a school entity do the following when an individual refuses to wear a mask:

“The Order, issued under the Disease Prevention and Control Law, establishes a legal mandate. School entities are expected to enforce the Order as they do other state laws and school rules and policies. Reasonable steps may include developing and implementing a policy, enforcing already existing policies, training staff on conflict management, and monitoring and taking corrective actions in instances of noncompliance among staff, students, or visitors. School entities should follow their local policies and procedures on managing student and staff misconduct.” 

Additionally, the guidance addresses the complaint process as follows:

“Parents can submit complaints about non-compliance with the masking order to their child's school principal or building administrator. If a building or districtwide issue, parents should contact the central district's office administration/Superintendent prior to submitting to the school board.”

Our guidance to law enforcement referred only to enforcement of the mask mandate.  Law enforcement can file charges if there are situations that escalate to the point where there are violations of the Crimes Code, specifically any harassing, threatening, or other violent behavior.