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Category: Coronavirus

Ohio Department of Health Updates Covid Reporting Expectations


March 12, 2022

Megan GreulichMarch 12, 2022

On March 10, 2022, the Director of the Ohio Department of Health (ODH) officially took action to rescind the September 3, 2020 Director’s Order Requiring Reporting and Notification Regarding Covid-19 Cases in  K-12 Schools effective at 12:01 p.m. on Thursday, March 10, 2022. As a result, schools now only must report positive results for tests performed by the school. More specifically, schools no longer are required to do the following:

  • Maintain a Covid reporting system for parents to report positive Covid-19 cases.
  • Have a designated district Covid-19 coordinator.
  • Notify parents of positive Covid-19 cases among staff, students, or coaches.
  • Report positive cases of Covid-19 to the local health department, unless the school tests the student for Covid-19 and the result is positive.

Schools are encouraged to continue to work with local departments of health to monitor community spread and continue to emphasize mitigation strategies to reduce transmission of infectious diseases. Schools also are encouraged to consider layered prevention strategies, including masking and physical distancing if rates of community spread begin to increase in their area. Although the reporting standards have been rescinded, the quarantine and isolation measures set forth in the Mask to Stay, Test to Play protocols remain in effect. Walter | Haverfield attorneys are available should you have questions about the legal implications of these changes or implementation of other Covid-19 mitigation strategies in your District.

Megan Greulich is a partner at Walter | Haverfield who focuses her practice on education law and labor and employment law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

CDC Updates Transportation Masking Requirements


February 26, 2022

Megan GreulichFebruary 26, 2022

Effective Friday, February 25, 2022, the Centers for Disease Control and Prevention (“CDC”) will no longer require that masks be worn on buses or vans operated by public or private schools. This change is intended to align with the CDC’s updated guidance, which no longer recommends universal masking in K-12 settings in areas with low or medium COVID-19 community levels. The CDC is effecting this change through exercise of its enforcement discretion, so while the CDC transportation Mask Order remains in effect, its requirements will no longer be enforced with regard to schools.

As a result, while still permitted to do so, boards of education are no longer required to implement or enforce mask-wearing on school district transportation. Districts wishing to discontinue current masking requirements should work with Board counsel to review and revise any District policies or plans that include transportation masking requirements, and ensure that any changes to current requirements are properly communicated to all community stakeholders. As always, please feel free to reach out if we can be of assistance as you consider revisions to your existing COVID-related plans.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law and labor and employment law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

How Ohio’s New Municipal Income Tax Withholding Requirements Impact Work-From-Home Arrangements

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February 10, 2022

February 10, 2022 

Beginning in 2020, COVID-19 prevented millions of people from leaving their homes and forced employers to create work-from-home policies. The work-from-home policies promoted virtual work environments, as employers adapted their workflows to embrace the new normal.

At first, employers considered virtual work environments a temporary solution. But, employees and employers have found considerable value in allowing employees to work from home, even as the most pressing dangers from COVID-19 are subsiding. Now, many employers are moving to permanent hybrid work environments, offering employees the ability to split their work time between offices and their homes.

In Ohio, 649 municipalities and 199 school districts impose income taxes where an employee works. And, employers are generally required to withhold applicable municipality and school district income taxes. When employers first instituted work-from-home and hybrid work policies, it was unclear what municipality’s taxing rules applied if an employee’s home and the employee’s office are in different municipalities. Ohio’s 2021-2022 budget law, passed in 2021, made Ohio’s municipal income tax withholding requirements clearer.

Effective January 1, 2022, employers must withhold municipal income taxes where an employee’s work is actually performed, for each portion of a day worked in any taxing municipality where the employee performs services for the employer. The rule applies even when an employee works in a different municipality in the same day.

Example. An employee, John, works from home three days per week and in the office two days per week. John’s home is in Cleveland Heights, Ohio, but his office is in Cleveland, Ohio. Both Cleveland Heights and Cleveland impose municipal income taxes. Under the new law, John’s employer must withhold and pay over Cleveland Heights income taxes for the three days John works from home, and Cleveland income taxes for the two days John works from the office.

The general rule has several exceptions, including a 20-Day Occasional Entrant Exception, Independent Contractor Occasional Entrant Exception, and Small Employer Withholding Exception. Walter | Haverfield will cover the exceptions and employer best practices in an upcoming client alert.

The Ohio Society of CPAs has released a comprehensive Municipal Tax Withholding and Refund Q&A Guide, which can be downloaded here.

If you have questions about complying with Ohio’s new municipal income tax withholding requirements—including questions about eligibility for an exception—please contact Walter | Haverfield’s tax attorneys Vince Nardone and Mike Sorice. Their contact information is below.

Vince Nardone is Partner-in-Charge of Walter | Haverfield’s Columbus office. Vince can be reached at vnardone@walterhav.com or at 614-246-2264.

Mike Sorice is an associate in the Columbus, Ohio office of Walter | Haverfield. Mike can be reached at msorice@walterhav.com or at 614-246-2262.

Ethan Fry is a law clerk in the Columbus, Ohio office of Walter | Haverfield. Ethan can be reached at efry@walterhav.com or at 614-246-2267.

New Contact Tracing Implications for School Districts


January 27, 2022

January 27, 2022 

On January 26, 2022, the Ohio Department of Health issued a memo to local health departments and school superintendents on new requirements, effective immediately, for contact tracing and case investigation relating to COVID-19. The memo recommends that local health departments shift from universal contact tracing to a cluster or outbreak-based model. With this shift, the requirements for school districts have changed:

  • Schools may now discontinue universal contact tracing, however schools are expected to assist their local health departments with contact tracing, case investigation and exposure notification as related to outbreak or clusters in school as determined by the local health department;
  • School case reporting will now be expected weekly. Starting on February 4, 2022, schools should report positive student and staff cases to their local health departments by the close of business on Fridays.

Schools should still continue to follow the Ohio Department of Health’s “Mask to Stay, Test to Play” protocol.

This shift will decrease the burdens on school districts with respect to contract tracing and could also impact student quarantines.

The Ohio Department of Health’s memo and guidance from the Ohio Department of Education can be found here and here.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274. 

Sixth Circuit Lifts Stay on Vaccine Mandate

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December 21, 2021

December 21, 2021

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) that compels private employers with 100 or more employees to implement mandatory COVID-19 vaccination policies or require unvaccinated employees to undergo regular testing and wear a face mask at work. The next day, the U.S. Fifth Circuit Court of Appeals issued a stay halting the implementation of the ETS pending judicial review, and it renewed that decision on November 12. The challenges to the ETS, which were filed in federal courts across the country, were all consolidated for review in the Sixth Circuit. On December 17, the Sixth Circuit dissolved the Fifth Circuit’s stay, clearing the way for the ETS to go into effect and giving OSHA the authority to proceed with enforcement.  In the 2-1 ruling, the Court concluded that the ETS was not only within OSHA’s statutory authority to address a “grave danger,” but was also necessary to address it.

Following the Sixth Circuit’s ruling, OSHA issued a news release regarding enforcement of the ETS.  To allow employers sufficient time to comply, OSHA will not issue citations for noncompliance for any of the requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022.  As to the specific requirements of the ETS and for which employers are affected, please see our prior client alert issued on November 4, 2021, entitled OSHA Issues Emergency Temporary Standard for Covid-19 Vaccination.

Opponents of the ETS are now seeking an emergency stay from the United States Supreme Court.  Therefore, employers should prepare to meet the enforcement deadlines set forth by OSHA and should also continue to monitor any ruling from the Supreme Court as to the legality of the ETS.  Please contact Walter | Haverfield’s Labor and Employment attorneys for questions as to the implementation of written policies, ETS requirements for testing and face coverings, and OSHA enforcement deadlines.

Jennifer Whitt is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at jwhitt@walterhav.com or at 216.658.6249.

Shannon Byrne is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at sbyrne@walterhav.com or at 216.928.2909.

Russell T. Rendall is senior counsel at Walter | Haverfield and focuses his practice on labor and employment law. He can be reached at rrendall@walterhav.com or at 216.658.6237.

New Ohio Law Fosters Much Needed Educational Options in the COVID Era


December 10, 2021

Updated: December 14, 2021

Ohio Governor Mike DeWine signed Senate Bill 229 (SB 229) into law on December 14, 2021, which enacts several temporary law provisions that give school districts greater flexibility to deliver alternative learning models for the 2021-2022 school year. The law is enacted as an emergency so it takes effect immediately. The three learning models addressed by SB 229 are blended learning, an extension of the remote learning plans initially instituted last year by HB 164, and online learning schools created under Ohio Revised Code (R.C.) 3302.42. This flexibility will be important going forward as districts consider new ways to provide instruction during the continuing COVID-19 pandemic.

Blended Learning Models

SB 229 allows districts to submit a declaration to the Ohio Department of Education (ODE) by April 30, 2022 to implement or discontinue the use of a blended learning model during the 2021-2022 school year. Although notification to ODE is required, a district’s use of blended learning for the 2021-2022 school year is not subject to ODE’s approval.

Additionally, SB 229 revises the definition of “blended learning” in the Ohio Revised Code to include “non-computer based opportunities.”

Districts that choose to implement a blended learning model for any portion of the 2021-2022 school year must also do the following:

  • Ensure students have access to the internet and devices to enable them to participate in online learning, including providing access or devices at no cost to students who do not have appropriate access (i.e. providing a wireless hot spot);
  • Monitor and assess student achievement and progress, providing additional services if necessary to improve student achievement;
  • Periodically communicate with parents or guardians on student progress;
  • Submit certain reports to ODE on the number and duration of students engaged in blended learning, including students with disabilities; and
  • Comply with the blended learning requirements of R.C. 3302.41.

Remote Learning Plans

In addition to blended learning models, SB 229 allows certain districts to reinstate their remote learning plans previously submitted through HB 164, which went into effect in July 2020. The remote instruction authorized by SB 229 is only for the remainder of the 2021-2022 school year and only to students whose parents or guardians submit a written request for this option. It is important to note that the bill specifically prohibits districts who have already created an online school under R.C. 3302.42 (HB 110) from being able to reinstate their remote learning plans.

In order to continue instruction through a district’s remote learning plan, districts are required to adopt a Board resolution and notify ODE by December 15, 2021. Similar to blended learning models, notification to ODE is required, but the plan itself is not subject to approval by ODE.

A district that chooses to continue to offer remote instruction for the remainder of the 2021-2022 school year must update their remote learning plan to include similar assurances and requirements as those for blended learning plans as indicated above. In addition, districts must also do the following for remote learning plans:

  • Meet all minimum school year requirements;
  • Track and document all remote student learning participation including online and offline activities;
  • Report student attendance based on student participation;
  • Develop a statement describing the school’s approach to address nonattendance and compliance with truancy procedures; and
  • Submit the remote learning plan to ODE and publish it on the district website.

Online Learning Schools

SB 229 does not make any changes to the requirements for online learning schools created under R.C. 3302.42, but it does add the following two provisions affecting these schools:

  • Students required to quarantine may participate in a district’s online learning school for the duration of that student’s quarantine; and
  • Online learning schools are exempt from the emergency management plan requirements so long as students are participating in in-person instruction or assessments at a location that is not covered by an emergency management plan.

Additional Provisions Affecting School Districts

SB 229 puts forth a series of other requirements affecting districts as well:

  • COVID-19 Remediation Plans: Districts are required to submit to ODE and publish on its website a remediation plan to address the loss of learning experience by students as a result of the COVID-19 pandemic. ODE will be developing standards and a template for the remediation plans.
  • Online Services for Special Education Students: For the 2021-2022 school year and upon request of a parent, an individual who holds a valid license with a licensing board is permitted to provide services electronically or through telehealth.
  • Withdrawal of Students for Failure to Take Assessments: Revises the requirements on automatic withdrawal of students by internet and computer-based schools so that the new starting point for considering two years of failure is the 2021-2022 school year.
  • Financial Literacy Instruction: Districts are required to integrate the study of economics and financial literacy into one or more existing social studies credits for students who enter ninth grade for the first time between July 1, 2010 and July 1, 2022.
  • Third Grade Reading Guarantee: Districts are exempt from retaining students under the third grade reading guarantee for the 2021-2022 school year.

As always, please contact legal counsel should you have questions regarding instructional options or the impact of these decisions on your specific district’s practices.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274. 

OSHA Issues Emergency Temporary Standard for COVID-19 Vaccination


November 4, 2021

November 4, 2021 

The Occupational Safety and Health Administration (OSHA) announced its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) that requires many employers to implement mandatory COVID-19 vaccination policies or require unvaccinated employees to undergo regular testing and wear a face mask at work. The full text of the new rule is 490 pages long, but OSHA has also provided a brief fact sheet summarizing the key components, available here.

Who does this new rule apply to?

The ETS applies to private employers with 100 or more employees company-wide, including all full-time, part-time, and temporary employees. It does not cover public employers in states, such as Ohio, that do not have OSHA-approved State Plans. It does not cover employers already subject to the federal contractor requirements or the Healthcare ETS.

What does it require of covered employers?

Covered employers must either (1) implement a mandatory COVID-19 vaccination policy, or (2) implement a policy that gives employees the choice of vaccination or weekly testing and wearing a face mask at work.

When does it take effect?

The ETS will be published in the Federal Register and effective tomorrow, November 5, 2021, but employers will have 30 days to implement most of the requirements, and 60 days to implement testing in lieu of vaccination if the employer provides that option.

Does the ETS apply to all employees of a covered employer?

No. The requirements do not apply to employees who work from home, work exclusively outdoors, or do not report to a workplace where others are present.

Do employers need to provide paid time off for employees to get vaccinated?

Yes. Employers must provide a reasonable amount of paid time off (up to 4 hours) for employees to receive each primary dose of the vaccine and a reasonable amount of time and paid sick leave to recover from side effects of the vaccine.

Does the ETS require employers to pay for the costs of weekly testing if they provide that option in lieu of vaccination?

No. Under the ETS, employers may require employees who opt for testing in lieu of vaccination to cover any costs related to getting themselves tested. Please note that although the ETS does not require employers to pay for such testing, it may be required by other laws, regulations, or the terms of a collective bargaining agreement.

What do employers need to do if an employee tests positive for COVID-19?

Employers must require employees to promptly notify them of a positive test or diagnosis. Once aware of such a positive test or diagnosis, employers must remove the employee from the workplace immediately and keep them out of the workplace until return to work requirements are met. Any work-related COVID fatalities or in-patient hospitalizations must be reported to OSHA.

What steps should employers be taking right now?

Covered employers should start developing their COVID-19 policies and procedures immediately, as they will need to be in place by December 5, 2021. Employers will also need to collect information about employee vaccination status in order to implement and enforce their policies. In addition, employers should prepare a communication plan to deliver information to employees and address questions about the ETS, COVID-19 vaccines, and the employer’s policies.

The Walter | Haverfield labor and employment team will keep you updated as further developments arise. Please contact us if you have any questions regarding OSHA’s new vaccination requirements or if you need assistance developing, implementing, or enforcing the policies mandated by the ETS.

Russell T. Rendall is senior counsel at Walter | Haverfield and focuses his practice on labor and employment law. He can be reached at rrendall@walterhav.com or at 216.658.6237.

Ohio Federal Court Issues Preliminary Ruling Denying Challenge to District’s Mask Mandate

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September 16, 2021

Christine CosslerSeptember 16, 2021 

With students returning to in-person learning under the continuing backdrop of the COVID-19 pandemic, mask mandates have become a contentious issue as lawsuits are being filed across the country, including locally. With Ohio’s state of emergency lifted in June 2021, and limited rulings from the courts on these issues, decisions related to masking have been left to local school districts as part of their local authority.

On September 13, 2021, the Northern District of Ohio issued a preliminary ruling in P.M. v. Mayfield City School District Board of Education, denying a challenge to a mask mandate implemented by the Mayfield City School District Board of Education. This decision provides insight as to how similar lawsuits against mask mandates enacted in Ohio’s school districts could be handled.

In the P.M., case, a student, P.M, through her parent, filed for a temporary restraining order (TRO) against Mayfield City School District Board of Education’s mask mandate, which was implemented this school year for all students, teachers, and faculty. The TRO sought by P.M. would effectively require the district to immediately drop the mask mandate. P.M. alleged various constitutional violations in connection with the district’s mask policy, and also argued  that the policy causes immediate and irreparable health risks to students, staff, and the community at large.

The mask mandate aligned with recommendations from the Ohio Department of Education, Ohio Department of Health, Centers for Disease Control and Prevention, and Ohio Governor Mike DeWine.

The court denied the TRO, finding that P.M failed as to all four parts of the TRO test: 1) whether the plaintiff has a strong likelihood of success on the merits of the case, 2) whether the plaintiff would suffer irreparable injury in the absence of the TRO, 3) whether the TRO would cause substantial harm to others and 4) whether the public interest would be served by the issuance of the TRO. Notably, the court held that to issue the TRO would potentially cause “substantial harm to the district’s students, teachers, and faculty through community spread of COVID-19, which could potentially cause serious illness and death.” Precluding the mask mandate would also pose an increased risk of quarantine and long-term disruption.

The court also found that P.M was not likely to succeed on the merits of her constitutional claims because wearing a mask does not impede her from attending school or otherwise violate the 14th Amendment of the Constitution.

Additionally, the court found that P.M. did not show any evidence of personal or imminent harm from the district’s mask policy, particularly given the policy’s exemption options.

It is important to note that P.M.’s TRO request was an initial “emergency” phase of a larger lawsuit filed against the district regarding its mask mandate. Thus, while she lost the initial emergency request to ban the mask policy, her underlying challenge to the mask policy remains pending with the court. However, the court’s conclusion, as part of its rationale for denying the TRO request, that plaintiff did not show a substantial likelihood of success on the merits serves as an indication of how the case might ultimately be decided. It remains to be seen what impact this decision will have on other mask policy cases against Ohio’s school districts.

Christine Cossler is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at ccossler@walterhav.com or at 216-928-2946.

Sara G. Katz is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274

U.S. Department of Education Releases “Roadmap” to Return to In-Person Learning


August 3, 2021

Christina PeerAugust 3, 2021

On August 2, 2021, the U.S. Department of Education (Department) released the “Return to School Roadmap,” a resource to students, educators, school districts and parents in preparation for the return to in-person learning for the 2021-2022 school year. As schools begin to reopen nationwide, the roadmap is intended to serve as a guide outlining strategies suggested by the Centers for Disease Control and Prevention’s (CDC) for K-12 schools. It also lays out actionable steps for schools to take in order to both minimize virus transmission and to help sustain long-term, in-person learning.

  • In addition to the roadmap, the Department has already issued several supportive resources to help guide both educators and students this fall:
    • Prioritize the health and safety of students, staff, and educators
    • Build school communities and support students’ social, emotional, and mental health
    • Accelerate academic achievement
  • A fact sheet on the Return to School Roadmap, reviewing the three “Landmark” priorities listed below.
  • The White House also released a fact sheet highlighting the Administration’s efforts to safely reopen schools and support the nation’s students in conjunction with the launch of the roadmap.

The Department has announced that it will soon provide additional resources to students, educators, school districts and parents as part of the Return to School Roadmap. These additional resources include:

  • Providing implementation tools for schools, educators, and parents to address the areas of health and safety, student well-being, and academics in the following areas: supporting schools in their efforts to address lost instructional and extracurricular time, providing information on how American Rescue Plan funds can be used to expand access to mental health supports for students and educators, and providing additional academic supports.
  • Updating Volumes 1 and 2 of the Department of Education’s COVID-19 handbooks to reflect the recently updated CDC K-12 guidance.

With the 2021-2022 school year about to begin, school districts continue to face difficult decisions and challenges related to COVID-19. Districts are encouraged to work closely with their local departments of health and, if necessary, legal counsel as they navigate the latest COVID-19 guidance.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

 

Guidance Issued Regarding Districts’ Obligations to Students Suffering from “Long COVID” Under the IDEA and Section 504


August 2, 2021

Christina PeerAugust 2, 2021

On July 26, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR) and the Office of Special Education and Rehabilitative Services (OSERS) published a joint resource to provide information about school districts’ obligations to students for whom COVID is a disability, also referred to as “long COVID.”  Per the Centers for Disease Control and Prevention (CDC), there are numerous post-COVID conditions that can create new, returning, or ongoing health problems that people sometimes experience more than four weeks after a COVID-19 infection.  Some symptoms that can occur in children include:

  • Tiredness or fatigue
  • Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
  • Headache
  • Changes in smell or taste
  • Dizziness on standing (lightheadedness)
  • Fast-beating or pounding heart (also known as heart palpitations)
  • Symptoms that get worse after physical or mental activities
  • Chest or stomach pain
  • Difficulty breathing or shortness of breath
  • Cough
  • Joint or muscle pain
  • Mood changes
  • Fever
  • Pins-and-needles feeling
  • Diarrhea
  • Sleep problems
  • Changes in period cycles
  • Multi-organ effects or autoimmune conditions
  • Rash

Long COVID can be a disability under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 (Section 504).  Depending on the severity and impact of long COVID symptoms, and the necessity of specially designed instruction, students suffering with long COVID could also be eligible under the Individuals with Disabilities Education Improvement Act (IDEA).  In determining whether to evaluate a student under Section 504 or IDEA, districts should consider the following:

  • Students can qualify for Section 504 protections even if their impairment does not substantially limit learning, as long as that impairment limits some other major life activity.
  • To qualify under the IDEA, however, the impairment must adversely affect the student’s educational performance and require specially-designed instruction.

If presented with a student suffering from long COVID symptoms, districts should:

  • Determine if a disability is suspected under Section 504 or the IDEA.
  • If a disability is suspected, notify the parent that the district suspects a disability and would like to evaluate the student to determine eligibility.
  • Obtain parental consent for the evaluation (or document the parent’s decision not to consent to the evaluation).
  • If consent is obtained, conduct the evaluation and make an eligibility decision (using the applicable Section 504 or IDEA eligibility criteria).
  • If the student is eligible, create and offer a Section 504 plan or IEP.

If you have any questions, please reach out to us. We are happy to help with any challenges your district may be experiencing.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

HB 110 Changes to Blended Learning


July 30, 2021

Megan GreulichJuly 30, 2021

One of the many changes associated with Ohio’s Biennial Budget, House Bill (HB) 110, includes revisions to the statutes addressing implementation of a Blended Learning Model. It’s important to be aware of these changes, as they are likely to impact district plans for implementation of blended learning models during the 2021-22 school year.

HB 110 revised the definition of “blended learning” as set forth in Ohio Revised Code (ORC) Section 3301.079(J) to require that the combination of instructional delivery under a Blended Learning Model include time primarily in a supervised physical location away from home. While a combination of time spent via delivery of in-person and online instruction still is required, the HB 110 change removes flexibility from districts to allow for implementation of a Blended Learning Model that includes a majority of the time spent in online learning. While the addition of one word to the definition may seem minor, this change creates additional limitations on online learning at a time when districts already are struggling with limited options for continuation of online learning into the 2021-22 school year. In addition to this limitation, the definition of blended learning also has been revised to include a definition of “online learning,” which the statute defines to mean students working primarily from their residences on assignments delivered via an internet- or other computer-based instructional method.

HB 110 also revises ORC Section 3302.41 to remove the exemption from minimum school year or day requirements set forth in ORC Sections 3313.48 and 3313.481 that formerly applied under implementation of Blended Learning. Under the new language, schools opting to implement a Blended Learning Model now will be required to maintain an annual instructional calendar of not less than 910 hours.

In addition to the changes set forth in HB 110, the Ohio Department of Education (ODE) has released guidance regarding implementation of blended learning and online schools. Districts were required to submit Blended Learning Declarations by July 1, 2021, and the ODE Online & Blended Learning Considerations for 2021-22 School Year FAQ notes that if a district has submitted a Blended Learning Declaration and decides not to use a Blended Learning Model, the district should rescind its Blended Learning Declaration prior to August 31, 2021. As a result, districts that have submitted a Blended Learning Declaration should consider whether the HB 110 changes will result in a change of plans that might necessitate rescission of that Blended Learning Declaration and/or changes to district plans for implementation of a Blended Learning Model.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law and labor and employment law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

CDC and State Department of Health Issue New COVID Guidance for Ohio School Districts


July 28, 2021

Christina Peer

July 28, 2021 

On July 27, 2021, the Centers for Disease Control and Prevention (“CDC”) issued this update recommending “universal indoor masking for all teachers, staff, students and visitors to K-12 schools, regardless of vaccinations status.” The update comes one day after the Ohio Department of Health (“ODH”) released this COVID-19 guidance for Ohio K-12 Schools (“ODH Guidance”). The CDC’s Guidance is in line with the latest recommendation from the American Academy of Pediatrics which, on July 19, 2021, recommended universal masking in schools for students over age 2, unless contraindicated by medical or developmental conditions.

The ODH Guidance, which has been updated for the 2021-2022 school year, leads with the stated goal to “keep students back in school, in-person five days a week.”  It also addresses three primary measures to help prevent the spread of COVID-19: vaccination (for all eligible individuals for whom vaccination is not medically contraindicated); wearing masks; and additional measures including proper ventilation, physical distancing, good hygiene practices, etc.

Promoting Vaccination

The ODH Guidance encourages all eligible individuals to obtain the COVID-19 vaccine, citing vaccination as “the leading public health prevention strategy to end the COVID-19 pandemic.” The ODH Guidance suggests the following strategies for school districts to promote vaccination:

  • Encourage teachers, staff, students and their families to get vaccinated and share information regarding COVID-19 vaccine locations
  • Consider partnering with vaccine providers to host vaccination clinics on-site before, during or after school or in the summer leading up to the return to school
  • Consider hosting information sessions or pop-up vaccination clinics in partnership with vaccine providers
  • Provide flexibility with respect to excused absences for students who are absent to get vaccinated or who might have side effects from the vaccine

Masking in Schools

While the ODH  Guidance “strongly recommends that those who are unvaccinated wear masks while in school,” it does not mandate facial coverings in schools. Rather, this decision is being left to each individual school district. The ODH Guidance recommends masks in indoor settings. But for outdoor settings, it states masks are not necessary, including when participating in outdoor play, recess and physical education activities. The ODH Guidance also notes that exceptions should be made for individuals who cannot wear a mask because of a developmental delay or disability and for individuals for whom wearing a mask would create a workplace health/safety risk.

In making the decision of whether facial coverings will be required, districts must be aware of Ohio H.B. 244, which was signed by Governor DeWine on July 14, 2021 and becomes effective on October 13, 2021.  Per this new state law, public school districts are prohibited from (1) requiring receipt of a vaccine that has not been granted full FDA approval and (2) “discriminating” based on whether an individual has received a vaccine that has not received full FDA approval. Under H.B. 244, “discrimination” includes requiring individuals who have not been vaccinated to engage in or refrain from engaging in activities or precautions that differ from those applicable to vaccinated individuals. In other words, H.B. 244 prohibits school districts from requiring that only unvaccinated individuals wear masks. Importantly, as noted above, H.B. 244 is not effective until October 13th, and once the COVID-19 vaccines receive full FDA approval, the provisions of H.B. 244 will not apply.

Masking on Transportation

Although the ODH Guidance leaves the decision regarding masks in school to individual school districts, districts do not have this flexibility with respect to transportation. On January 29, 2021, the CDC issued this order requiring masks for all individuals, regardless of vaccination status, on public transportation.  This includes school busses and all students/staff members traveling by school bus. The ODH Guidance includes a reference to the CDC Order and its applicability to school busses.

Improving Ventilation

The ODH Guidance goes into significant detail about improving ventilation, calling it a “critical intervention that can help slow the spread of the virus.” Districts are encouraged to consider using ESSER funds to upgrade air quality systems in school buildings. Additional guidance from the U.S. Department of Education regarding the use of ESSER funds for this purpose is available here.

Additional Mitigation Strategies

The ODH Guidance includes information on additional mitigation strategies, particularly physical distancing between individuals. The ODH Guidance recommends:

  • Maintaining at least 3 feet of physical distance between students in classrooms;
    • When this is not possible, it is particularly important to layer other prevention strategies such as masking, testing, cohorting, improved ventilation, regular cleaning and hand washing, etc.
  • Maximizing physical distancing as much as possible during mealtimes in food service lines and indoor eating areas
  • Limiting non-essential visitors and volunteers, particularly in areas where there is moderate to high COVID-19 community transmission

The ODH Guidance also addresses symptom assessment, contracting, isolation and quarantine.  Specifically, the ODH Guidance recommends:

  • Educating teachers, staff and families about COVID-19 symptoms and when they or their children should stay home and when they can return to school
  • Monitoring daily attendance patterns of staff/students for trends
  • Continuing contact tracing and notification of close contacts of COVID-19 exposure as soon as possible after a positive test is reported

The ODH Guidance also provides modified quarantine procedures. Specifically, the ODH Guidance states: “unvaccinated students who have been exposed to COVID-19 in school settings can continue to attend school and participate in sports and extra-curricular activities if both students were wearing masks consistently and correctly, and other layered prevention strategies including appropriate distancing were in place.”  The ODH Guidance goes on to state that “fully vaccinated students do not have to quarantine,” but it does not indicate how this distinction can be squared with the requirements of H.B. 244. While not explicitly stated in the ODH Guidance, it appears that, if both students were not wearing masks or if other mitigation strategies were not in place, quarantine would be required. School districts should seek guidance from their local departments of health regarding contact tracing, isolation and quarantine requirements.

With the 2021-2022 school year about to begin, school districts continue to face difficult decisions and challenges related to COVID-19.  Districts are encouraged to work closely with their local departments of health and, if necessary, legal counsel as they navigate the latest COVID-19 guidance.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.