MacArthur, Suffolk Transit to require masking again

Long Island MacArthur Airport and the Suffolk County bus system reversed course Wednesday and reinstated the transportation mask mandate both had dropped a day earlier amid confusion in New York over the requirement.

Islip Town, which runs the airport, will enforce the mask mandate in areas such as ticketing and baggage claim, said town spokeswoman Caroline Smith. But beyond TSA checkpoints, Smith said, there will be no enforcement.

In contrast, the Port Authority of New York and New Jersey, which runs the region’s main airports including Kennedy and LaGuardia, requires masks at “all public facing portions of the respective facilities" in New York, according to spokesman Tom Topousis.

The split was the latest sign of persistent confusion over where and when to mask up since a federal judge Monday struck down the nationwide mandate for transportation.

The ruling, by U.S. District Judge Kathryn Kimball Mizelle, does not affect a preexisting mask mandate, signed in March by the commissioner of the state Health Department. That means MacArthur, the Suffolk buses and any other airport or transit operator in the state cannot make masks optional, as some had announced after the court ruling.

Mizelle ruled that the Centers for Disease Control and Prevention overstepped its authority in issuing the original masking order.

Late Wednesday, the CDC announced that it had asked the U.S. Justice Department to appeal the ruling.

On Long Island, the policy reversals came after Newsday made inquiries to Gov. Kathy Hochul's office, to Suffolk County and to Islip, about the scope of the state mandate, as well as reports statewide about certain jurisdictions making masks optional.

Suffolk spokeswoman Marykate Guilfoyle — who had said Tuesday that masking would no longer be enforced on buses and paratransit vehicles — said Wednesday: "Suffolk County will comply with the New York State mandate requiring masks on public transportation."

Smith — who Tuesday said of masking, "the decision is yours. Whatever makes you comfortable" — said Wednesday that the town had been told by Hochul's office that masks must be worn in areas controlled by the airport.

That meant "specifically, baggage claim and ticketing areas," Smith said. The police and the airport’s security officers, who enforce other laws and other airport rules, would not enforce masking beyond TSA security checkpoints, and it's now the state health department's responsibility.

Southwest Airlines spokesman Dan Landson said enforcement is not the carrier's job.

“It’s up to the local entity to regulate their policies,” Landson said in an email. The airline is a tenant of the concourse. Passengers can unmask once aboard the aircraft, Landson said.

Asked about post-checkpoint masking at MacArthur, state health department spokeswoman Samantha Fuld said in an email Wednesday night: "TSA regulates their own jurisdiction, which is outside of New York State jurisdiction," referring inquiries to that agency, which couldn't immediately be reached for comment.

Hochul, speaking Wednesday, said the mandate applies across all of New York State.

“Let’s just be smart about it,” Hochul said in Syracuse, at her first COVID-19-specific briefing in weeks. “I think people do feel better when they are in public transit sitting really close to somebody to know that people are protecting themselves.”

She added: “And again, this is very much in the short term,” suggesting the state mandate would be dropped at some point in the relatively near future.

The Nassau County public bus system had kept its masking policy in place after the judge's ruling, and spokesman Mark Smith said Tuesday that masks are still required because of the state health department mandate.

Lawrence Gostin, a Georgetown law professor and an expert in pandemic mandates, said that absent an explicit carve-out to the contrary, public transportation entities in New York must enforce a state mandate, and a locality can't go its own way.

"The answer is no," Gostin said. "If it's a statewide mandate, there are no jurisdictions that can fail to enforce it, unless the state allows that. … You shouldn't have to go from one part of New York to another part and have a different rule."

Gostin said the state's mandate would need to explicitly exempt a jurisdiction or allow an opt-out, which the health department's March 2 mandate order does not.

"If the state isn't requiring enforcement of its order, then the message is, it's not very serious about the order," he said, "and that it's gonna let it slide. So if the state's aware of it, they should require enforcement of it, or enforce it themselves."

Asked by Newsday about transportation entities opting out, Avi Small, a spokesman for Hochul, cited the governor's previous comments that said: “Right now, New York State is under a directive from the Department of Health that requires masks on public transit. That includes the subway, the trains as well as our buses. So that's in effect right now, so we’re going to continue keeping that.”

Asked whether the state order applies to transportation systems not operated directly by the state, such as MacArthur and the Suffolk buses, Small responded by email with a bolded section of the order requiring that “all persons, two years of age and older and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering/mask while in indoor areas of conveyances or while indoors at transportation hubs.”

The Metropolitan Transportation Authority said masks would continue to be required at Penn Station and aboard the Long Island Rail Road, Metro-North trains and on subways, and at the Port Authority airports in New York.

That has led to a situation in which passengers could be required to wear a mask inside an airport, but be permitted to take it off once aboard a plane.

In contrast to the continued mask mandate for trains and stations in New York State, New Jersey Transit and Amtrak — the latter of which is run by the federal government — announced that passengers and employees are no longer required to wear the face coverings.

Dr. David Battinelli, physician-in-chief at Northwell Health, said lifting the mask mandate on public transportation will probably lead to more COVID-19 cases.

“Without masks, especially in close quarters, I don’t think there’s any question you’ll see more infections,” he said.

The mask decision should be made by public health officials, not a judge, he added.

At a bus stop in Coram on Wednesday, local resident Brian Wall said, "the pandemic is still going on, so I think people should wear the mask."

Port Jefferson resident Fred Martell said he will wear a mask on buses if it is required, but "I don't think you should have to. I'm against masks."

COVID-19 indicators continued to rise in the latest figures released Wednesday by the state.

The seven-day average for positivity on Long Island increased from 5.55% on Monday to 5.79% on Tuesday, according to state data. Nassau County registered 514 new daily cases on Tuesday, while Suffolk had 413. Some medical experts believe those are significant undercounts because many people are testing at home and not reporting positive results to the state.

The number of people hospitalized with COVID-19 in the state increased by 47, to 1,404. Statewide, 14 people, including one in Suffolk, died on Tuesday of causes linked to the virus.

With Cecilia Dowd

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