July 21, 2021
On July 14, 2021, Governor DeWine signed Ohio House Bill (HB) 244, which prohibits public school districts and state institutions of higher education from requiring an individual to receive a vaccine that has not been granted full United States Food and Drug Administration (FDA) approval. Because existing COVID-19 vaccines are currently operating under emergency FDA approval, they fall within this category.
In addition to the prohibition against requiring such vaccinations, the new language also prohibits discrimination against an individual who has not received a vaccine that does not have full FDA approval. This prohibition includes requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine.
HB 244 becomes effective on October 13, 2021, nearly two months after many schools return in the fall, meaning that the restrictions will not be applicable to schools until that date. It also is important to note that the restrictions are tied directly to vaccinations that do not have full FDA approval, and as a result, if COVID vaccines are granted full FDA approval, the restrictions no longer will apply for purposes of COVID planning.
Ultimately, the implementation of HB 244 is likely to reduce school districts’ flexibility in implementing the guidance and recommendations from health and other agencies, instead requiring more of an all or nothing approach to implementation of COVID precautions. With the return to school quickly approaching, both the Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP) have released updated guidance, with continued revisions to guidance from other agencies anticipated.
While many of the recommendations are familiar, including the emphasis on the importance of returning to in-person learning and implementing a layered approach to COVID precautions, the July 9 updates to the CDC K-12 guidance focuses in part on the importance of monitoring vaccination status and rates of transmission within each community. The guidance further recommends that where a school plans to reduce existing precautions due to high vaccination rates and low transmission rates, precautions should be reduced one at a time, with the impact of such reduction monitored prior to implementing subsequent precaution reductions.
Additionally, the revised guidance provides for differing standards in certain circumstances depending on vaccination status. Due to the passage of HB 244, beginning in mid-October, Ohio school districts will need to make difficult decisions about how to address this guidance in order to avoid differentiating between individuals who have and who have not received a COVID vaccine. As a result, in order to remain in compliance with HB 244, school districts should work with board counsel to ensure that any differing restrictions are not based on vaccination status.
While the AAP guidance released on July 19 also emphasizes the importance of in-person learning, the organization takes a more stringent approach to recommendations for schools, particularly with regard to masking recommendations. In doing so, the AAP specifically notes that its recommendations are based in part on the fact that students under the age of 12 are not yet eligible for vaccination, and it notes the challenges associated with monitoring and verifying vaccination status of individuals who currently are eligible to receive the vaccine. As a result, the AAP recommends universal masking in schools at this time. More specifically, the AAP recommends that all students older than two years and all school staff wear face masks at school except where a medical or developmental condition prohibits mask use. In addition to masking recommendations, AAP also urges school districts to continue to take a multi-layered approach to COVID precautions and work closely with state and local health authorities to coordinate their efforts.
Ohio Department of Health (ODH) Guidance
While ODH has yet to release revised guidance for the 2021-2022 school year, it appears that such guidance is imminent and expected to be released within the next few weeks. In addition to forthcoming state-level guidance, local health departments also have begun releasing guidance to address HB 244 and revised agency recommendations. As a result, districts should remain vigilant in keeping up with the changing standards and recommendations as we continue to move toward students’ return to school.
United States Department of Education (USDOE) Guidance
In addition to the health agency guidance, it also bears noting that USDOE has acknowledged the CDC’s recently updated guidance and is in the process of updating the 2021 ED Covid-19 Handbook, Volume 2 accordingly to address any necessary changes in light of the CDC’s revised guidance for K-12 schools.
As always, we will continue to keep you updated on any legal and/or guidance-related developments. In the meantime, please reach out to any W|H education attorney here if you have questions about your district’s plans for the 2021-2022 school year.