(The Center Square) – Pennsylvania’s top health official said a statewide universal masking mandate remains off the table over concerns that legislative “retaliation” may interfere with the administration’s other COVID-19 response efforts.

Acting Secretary of Health Alison Beam said Friday that reverting to the measure – thereby giving liability coverage to school districts contemplating masking policies of their own – proves difficult under the new emergency order limitations placed on Gov. Tom Wolf’s administration.

“At this time there is not a plan to mandate the masking requirement in schools because decisions of such magnitude are not made in a pure public health vacuum,” she told the Senate Education Committee during a hearing Friday. “As you all know, decisions such as this risk the retaliation of the General Assembly and that could pose far greater harms to our ability to swiftly and effectively respond to public health crises.”

Beam’s comment reference the tense relationship between the Wolf administration and Republican lawmakers who say the Department of Health’s public orders to restrict economic activity and travel for months on end last year went too far.

In May, voters agreed to change the governor’s emergency powers. Now, the Legislature must approve any disaster declaration that extends beyond 21 days. A separate bill to prevent the Secretary of Health from issuing statewide public shutdown orders or other mitigation efforts was vetoed by the governor in June.

“We are in a difficult spot given where this Legislature has put us,” she said. “Given the constitutional amendment that many of you supported, it is going to be extremely difficult to move forward with any of these requirements in a school setting.”

Students will return to classrooms later this month, but whether they will wear masks all day, sit in desks spaced three feet apart or submit to testing and contact tracing efforts, remains at the discretion of local school board officials. 

‘Given the constitutional amendment that many of you supported, it is going to be extremely difficult to move forward with any of these requirements in a school setting.’

Beam said the state recommends only that schools follow guidance from the U.S. Centers for Disease Control and Prevention on COVID-19 mitigation.

The latest federal recommendations include universal masking for unvaccinated Americans. Inoculated residents must also wear masks when riding public transportation – a rule that would conceivably apply to school buses, Acting Education Secretary Noe Ortega said.

But some Republicans on the committee, including Chairman Scott Martin, R-Strasburg, worried about absent legal language that permits local school board officials to mandate masks.

“I think there’s a real gap here statutorily and constitutionally that I don’t know if people have truly analyzed from a legal perspective for school boards and making these decisions,” he said. “When you talk about liability, there were employers and others who were worried about not following the guidance that they would be held liable somehow. There are dots here that are missing.”

Ortega said he’s never heard of a school district facing liability for transmission of a virus among students and assured the committee that state and federal relief funding isn’t tied to how closely schools follow recommended mitigation efforts.

“I just want to be really clear because this is something we want to dispel as a misconception,” he said. “We are not tying funding or the availability of the provision of funding to the decisions being made by schools around their health and safety plans.”

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The department clarified that districts need only to make their individual mitigation plans available online to receive the money.

“Until there is constitutional or statutory clarity, I don’t see how what is being imposed by locals is enforceable without school districts opening themselves up to potential litigation saying that they don’t have that authority to do this,” Martin said. “It’s an important question when you are dealing with people’s rights and their kids.”

Christen Smith follows Pennsylvania’s General Assembly for The Center Square. She is an award-winning reporter with more than a decade of experience covering state and national policy issues for niche publications and local newsrooms alike.

This piece was republished with permission from The Center Square.

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