The FRA has released Emergency Order 32 on the subject of face masks. ASLRRA has summarized the order as follows:
Yesterday, FRA released an emergency order (dated February 24, 2021) mandating that railroad carriers require their personnel to wear a face mask while engaged in railroad operations, including whenever in a transportation hub/facility under the railroad carrier’s control (regardless of duty status).The order states that failure or refusal to wear a mask while engaged in railroad operations, unless otherwise exempted, may result in removal from service. FRA states that refusing to wear a mask is a violation of federal law, which could result in the following consequences:
• Any violation of this EO may subject the railroad carrier committing the violation to a civil penalty of up to $118,826 for each day the violation continues.
• Any individual who willfully violates a provision stated in this order may be subject to civil penalties.
• Any individual (railroad personnel) whose violation of this order demonstrates the individual’s unfitness for safety-sensitive service may be removed from safety-sensitive service on the railroad.
• FRA may, through the Attorney General, also seek injunctive relief against a railroad for non-compliance with the EO in federal district court.
The requirement to wear a mask does not apply under the following circumstances:
- When necessary to temporarily remove the mask for identity purposes.
- For brief periods, while eating, drinking, or taking oral medications. Note: prolonged periods of mask removal are not permitted for eating or drinking; and the mask must be worn between bites and sips.
- While communicating with a person who is deaf or hard of hearing, when the ability to see the mouth is essential for communication.
- If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance.
- When necessary to temporarily remove the mask to provide a breath or saliva specimen for required alcohol testing under U.S. Department of Transportation drug and alcohol testing regulations or an employer-mandated substance abuse testing program.
- Persons in private conveyances operated solely for personal, non-commercial use.
- A driver when operating a commercial motor vehicle, such as a crew transportation van, limo, or taxi, as this term is defined in 49 CFR 390.5, if the driver is the sole occupant of the vehicle.
- A person who is the sole occupant of an enclosed cab of a locomotive, hi-rail vehicle, roadway maintenance machine, or any other on-track equipment that has an enclosed cab.
- People with disabilities who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act.
- An individual who is operating as a “lone worker” (in accordance with Part 214), outside and with social distancing from other individuals.
ASLRRA is seeking clarification from FRA on a number of issues that arise from this emergency order.