The DOH Face Covering Order issued on August 31 relies on two state laws for its authority:
1) Disease Prevention and Control Law of 1955
a) This law is found at Chapter 3 (Prevention of Spread of Diseases) of Title 35 of Pennsylvania Statutes. It took effect on April 23, 1956. The law has not been changed since 1956.
b) This law is followed by other laws dealing with topics such as: Hepatitis Prevention, Bloodborne Pathogens, Water and Sewage Standards, Infant Crib Safety, Cigarette Fire Safety, Sale of Live Turtles, Fireworks Law, Elevators, Prevention of Forest Fires, Air Pollution, Manholes, Amber Alert System, Carbon Monoxide Alarm Standards, Medical Marijuana, Treatment of Rape Victims, and many more.
c) The DOH Order primarily relies upon Section 5 of the Disease Prevention and Control Law:
“Upon the receipt by a local board or department of health or by the department, as the case may be, of a report of a disease which is subject to isolation, quarantine, or any other control measure, the local board or department of health or the department shall carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation.”
d) The Law does include a provision (Section 20) dealing with “penalties, prosecutions and disposition of fines:”
“Any person who violates any of the provisions of this act or any regulation shall, for each offense, upon conviction thereof in a summary proceeding before any magistrate, alderman or justice of the peace in the county wherein the offense was committed, be sentenced to pay a fine of not less than twenty-five dollars ($ 25) and not more than three hundred dollars ($ 300), together with costs, and in default of payment of the fine and costs, to be imprisoned in the county jail for a period not to exceed thirty (30) days.”
e) The Law also states “Prosecutions may be instituted by the department, by a local board or department of health or by any person having knowledge of a violation of any provisions of this act or any regulation.”
f) Since the beginning of the COVID-19 pandemic, there have been a handful of legal challenges related to DOH’s authority to Order “control measures;” however, to our knowledge, there has not yet been any appellate court decision on the merits of a universal masking mandate.
2) Administrative Code of 1929
a) This law is found in Chapter 2 of Title 71 of Pennsylvania Statutes. Article XXI deals with “Powers and Duties of the Department of Health.” This law was originally enacted in 1929 and has been amended several times through the 1940s, 1950s and 1990s.
b) The DOH Order primarily relies upon Section 2102 of the Administrative Code of 1929:
“The Department of Health shall have the power, and its duty shall be:
(a) To protect the health of the people of this Commonwealth, and to determine and employ the most efficient and practical means for the prevention and suppression of disease.”
c) Unlike the Disease Prevention and Control Law, the Administrative Code does not appear to contain any penalty provisions for non-compliance.