Christina PeerPeter ZawadskiFebruary 18, 2021

Stressing the importance of in-person learning, The Centers for Disease Control and Prevention (CDC) recently released guidance to open and operate K-12 schools in ways that mitigate the spread of COVID-19 (COVID). The CDC’s guidance includes detailed steps for districts, which are summarized below.

  1. Employ the following mitigation strategies to reduce the spread of COVID in schools: A universal mask mandate, physical distancing, handwashing and respiratory etiquette, cleaning and maintaining healthy facilities, and contact tracing in combination with isolation and quarantine. Among these strategies, the CDC recommends prioritizing mask wearing and physical distancing.
  2. Assess the level of community transmission – Since the risk of COVID in schools is dependent on the level of community transmission, the CDC recommends the use of two measures to determine the risk of transmission: (1) the total number of new cases per 100,000 persons in the past 7 days, and (2) the percentage of positive COVID test results during the last 7 days. The transmission level for any given location will change over time and should be reassessed weekly for situational awareness and to continuously inform planning.
  3. Utilize learning modes to best mitigate the spread of COVID – Recommended learning modes (in-person, hybrid, virtual) vary depending on the level of community transmission and strict adherence to mitigation. The following is an operational plan for schools that emphasizes mitigation at all levels of community transmission:
  • K–12 schools should be the last settings to close after all other mitigation measures in the community have been employed, and the first to reopen when they can do so safely. Schools should be prioritized for reopening and remaining open for in-person instruction over nonessential businesses and activities.
  • In-person instruction should be prioritized over extracurricular activities, including sports and school events, to minimize the risk of transmission in schools and protect in-person learning.
  • Lower incidence of COVID among younger students (for example, elementary school students) suggests that they are likely to have less risk of in-school transmission due to in-person learning than older students (middle school and high school).
  • Students whose families are at an increased risk for severe illness or those who live with people at increased risk should be given the option of virtual instruction, regardless of the mode of learning offered.
  • Schools are encouraged to use “cohorting” or “podding” of students, especially in communities with moderate to high levels of transmission, to facilitate testing and contact tracing, and to minimize transmission across pods.
  • Schools that serve students who are at risk for learning loss during virtual instruction should be prioritized to reopen and provide the needed resources to implement mitigation.
  • When implementing phased mitigation in hybrid learning modes, schools should consider prioritizing in-person instruction for students with disabilities who may require special education and related services to be directly provided in school environments, as well as other students who may benefit from receiving essential instruction in a school setting.
  1. Offer referrals to COVID testing – Regardless of a community’s transmission level, schools should refer students, teachers and staff members who exhibit COVID symptoms, or who were exposed to someone with a confirmed or suspected case of COVID, to a diagnostic testing site.
  2. Perform COVID testing on-site – Schools may perform COVID testing on school property if school-based healthcare professionals are trained in specimen collection, obtain a Clinical Laboratory Improvement Amendments (CLIA) certificate of waiver, and have proper personal protective equipment (PPE).

Schools may also elect to screen students, teachers and staff members to identify infected individuals without symptoms who may be contagious in an effort to prevent further transmission. When determining which individuals should be selected for screening testing, the CDC recommends prioritizing teachers and staff over students given the higher risk of severe disease outcomes among adults. When determining which students should be selected for screening testing, the CDC recommends prioritizing high school students, then middle school students, then elementary school students.

Testing should be offered on a voluntary basis. Consent from a parent or legal guardian (for minor students) or from the individual (adult students, teachers, staff) is required for school-based testing.

Every COVID testing site is required to report all testing performed to state or local health officials as mandated by the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

  1. Access to vaccines should not be considered a condition for reopening schools – The CDC says vaccinating teachers and school staff should be considered just one layer of mitigation and protection for staff and students. Even after they are vaccinated, schools need to continue mitigation measures for the foreseeable future, including mask wearing and physical distancing.

While not mandatory, the guidance from the CDC should be reviewed and considered by districts.  Districts already providing in-person instruction (whether “all in” or “hybrid”) should re-assess their mitigation efforts and decision-making frameworks to determine their alignment with the new guidance.  Districts currently providing only remote instruction should review this guidance and determine if a return to in-person instruction (either “all in” or “hybrid”) is feasible.  Districts contemplating a change in their model of instruction should be cognizant of the implications for both staff and students and be prepared to respond to these issues.

Walter | Haverfield attorneys will continue to monitor guidance from the CDC and inform you of any updates. If you have questions, please reach out to us here. 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.

Peter Zawadski is a partner at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com or at 216-928-2920.