Kathryn PerricoApril 30, 2020

On April 29, 2020, Dr. Amy Acton, as acting director of the Ohio Department of Public Health (ODH), signed the Second Amended Order relating to the closure of K-12 schools, a copy of which can be found here. Within this Order, Dr. Acton again makes it clear that school buildings are closed to students through June 30, 2020, but that administrators can determine appropriate levels of access to school buildings for teachers, staff, vendors, or contractors for the performance of activities necessary to carry out District operations. Any individuals who are granted access to school buildings are encouraged to maintain social distancing when possible, engage in frequent handwashing, and disinfect common areas and surfaces.

Within the Order, Dr. Acton has now permitted schools to petition their local departments of health for approval of “targeted educational support programs, and other educational programming,” which is presumed to encompass extended school year programs and services and summer enrichment or recovery programs. This language could also encompass activities such as student evaluations or therapies and services that cannot effectively be continued through remote learning opportunities and telehealth. However, to be clear, prior to engaging in these activities, school districts must obtain approval from their local department of health prior to the commencement of the activity and provide a copy of the authorization to both the Ohio Department of Health and the Ohio Department of Education.

In addition to excluding activities like voting, food services, health services, and charitable work from the scope of the Order, Dr. Acton is also permitting schools to petition their local health departments for “any activity” it would like to have excluded from the order. It is presumed that any activity for which exemption is sought should be similar in nature to the activities noted above.

As schools continue to navigate these ever-changing times, we encourage you to consult with your counsel as you move forward under the terms of the new Order. Thoughtful consideration should be given to what Board action is needed prior to advancing a petition before the local board of health as well as to the development of ODH distancing protocols that districts will adhere to in the event any petition is granted.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.