FRA: Emergency Order Mandates Full-time Masking for Operations

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24.February, Washington, DC – The Federal Railroad Administration issued Emergency Order No. 32, Notice No. 1, requiring face mask use in railroad operations.

According to the order, to help prevent the spread of coronavirus disease 2019 (COVID-19), the FRA is issuing this emergency order (EO) to require compliance with the mask requirements of the Order of the Centers for Disease Control and Prevention (CDC), Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs.

This EO also implements Executive Order 13998, Promoting COVID-19 Safety in Domestic and International Travel, issued on January 21, 2021 (Executive Order 13998), requiring masks to be worn in or on airports, commercial aircraft, and various modes of surface transportation, including trains. Specifically, this EO addresses requirements for face mask use with respect to all freight rail operations and portions of each passenger rail operation under FRA’s safety jurisdiction.

Lack of Uniformity in Mask Wearing in Railroad Operations

As of 1.February, field observations from FRA’s railroad safety inspectors regarding mask use on railroad property indicate that the critical practice of wearing a face mask is not consistent or uniform among railroad personnel. While some railroad carriers require their personnel to wear masks when working in an occupied locomotive cab and in rail facilities and shops, FRA has found this is not a universal requirement. FRA has observed railroad personnel often not wearing a face mask on railroad property, both in situations where social distancing is possible, and situations involving close proximity to others. FRA inspectors have also observed railroad personnel who did not put on a face mask when approached by the inspectors to discuss matters of railroad safety.

Necessity of Issuing the EO

Taking into consideration the unique and exigent circumstances presented by the COVID-19 pandemic (particularly the recent emergence of variants with increased transmissibility), as well as the  inconsistent use of masks observed by FRA inspectors through FRA inspection and investigation during railroad operations, FRA has determined that the COVID-19 pandemic has created an unsafe condition or practice involving a hazard of death or personal injury—not only to railroad personnel, but also to FRA and participating State rail safety inspectors who interact with railroad personnel during the performance of their essential railroad safety duties. This EO is necessary to abate this emergency situation, by FRA requiring face mask use in accordance with the CDC Order, to ensure a minimum level of nationwide compliance, together with the TSA SD.

Railroad carriers and their personnel must comply with the mask-wearing requirements set forth in the CDC Order while engaged in railroad operations, including whenever they are in a transportation hub/facility under the railroad carrier’s control (regardless of duty status).

Accordingly, under the authority of 49 U.S.C. 20104, delegated to the Administrator of FRA by the Secretary of Transportation, 49 CFR 1.89, it is hereby ordered that freight railroads, passenger railroads, and any other person whose actions are necessary to effectuate the directives in this EO, take the following actions, as required:

Railroad carriers.

(A) Railroad carriers must require their personnel to wear a mask in compliance with the CDC Order while engaged in railroad operations, including whenever in a transportation hub/facility under the railroad carrier’s control (regardless of duty status), except as described in Section III (Exceptions and exemptions), below. For the purpose of this EO, the term “personnel” includes employees, contractors, probationary employees, and volunteers.  Railroad carriers must provide their personnel with prominent and adequate notice of the mask requirements to facilitate awareness and compliance.  At a minimum, this notice must inform railroad carrier personnel of the following:

  1. Federal law requires every individual to wear a mask while engaged in railroad operations unless otherwise exempted and failure to comply may result in removal from service.
  2. Refusing to wear a mask is a violation of Federal law and railroad carrier personnel may be subject to FRA enforcement action against them individually.

(B) Railroad carriers must establish written procedures to manage situations with their personnel who refuse to comply with the requirement to wear a mask. At a minimum, for any person who is not exempted from the requirement to wear a mask and who refuses to comply with an instruction given by the railroad carrier with respect to wearing a mask, the railroad carrier must:

  1. Remove the person from performing duties in support of railroad operations; and
  2. Make best efforts to remove the person from the railroad transportation hub/facility as soon as practicable.
  3. Railroad carrier personnel.

Railroad carrier personnel must comply with the mask wearing requirements of the CDC Order while engaged in railroad operations, including whenever in a transportation hub/facility under the railroad carrier’s control (regardless of duty status), except as described in Section III.D., below. For the purpose of this EO, the term “personnel” includes employees, contractors, probationary employees, and volunteers.

Exceptions and exemptions.

(A) While the CDC Order applies to all persons awaiting, boarding, or alighting a conveyance and while in a transportation hub, this EO does not apply to passengers or persons (including railroad carrier personnel) in or on a passenger train or in public areas of passenger railroad transportation hubs or facilities.

(B) The requirement to wear a mask does not apply under the following circumstances:

  1. When necessary to temporarily remove the mask for identity verification purposes.
  2. For brief periods, while eating, drinking, or taking oral medications. Note: Prolonged periods of mask removal are not permitted for eating or drinking; the mask must be worn between bites and sips.
  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 (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance.
  5. 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.

(C) The following persons are exempted from wearing masks:

  1. Persons in private conveyances operated solely for personal, non-commercial use.
  2. 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.
  3. 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.

(D) This EO exempts the following categories of persons from wearing masks:

  1. 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 (42 U.S.C. 12101 et seq.).
  2. People for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or Federal regulations.

Civil Penalties

Any violation of this EO may subject the person (a railroad carrier) committing the violation to a civil penalty of up to $118,826 for each day the violation continues. 49 U.S.C. 21301 and 86 FR 1751 (Jan. 11, 2021). Any individual (railroad personnel) who willfully violates a provision stated in this order is subject to civil penalties under 49 U.S.C. 21301. In addition, 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 under 49 U.S.C. 20111. FRA may, through the Attorney General, also seek injunctive relief to enforce this Order. 49 U.S.C. 20112.

Click to view the Full Emergency Order Document