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.