Education Law Notes  

On August 14, 2020, the Governor’s office issued Executive Order 7NNN, which addressed the mandatory wearing of masks and other face coverings in public (with a limited exception for those with a medical condition).   https://schoollaw.pullcomblog.com/archives/no-longer-taken-at-face-value-executive-order-7nnn-and-the-new-requirement-for-medical-documentation-from-non-mask-wearers-and-what-it-means-to-connecticuts-schools/  Recently, on August 31, 2020, the Connecticut State Department of Education (“SDE”) issued further “Interim Guidance” on the use of face coverings in the schools during COVID-19.  Interestingly, the SDE latest “Interim Guidance” is very restrictive in terms of the requirement to wear a mask and appears to limit the scope of the medical exemption in the schools. 

The General Rule: The SDE restates it prior guidance requiring schools to adopt policies requiring the use of face coverings (i.e., cloth masks or disposable procedure-style masks that completely cover the nose and mouth) for all students and staff when they are inside of any school building.  The SDE also restates its prior guidance that directed schools to be prepared to provide a face covering to any student or staff member who does not bring one with them to school on any given day or be prepared to deny entry to individuals who arrive at school without a face covering.  The SDE further states that students and other staff (including coaches) may also be required to wear face coverings in certain situations outside of a school building, including during some outdoor instruction, extracurricular activities, during the daily admission and dismissal process, and on buses. The SDE notes that school districts should develop specific board approved policies regarding mask wearing, which should include what the school will consider as acceptable exemptions from the wearing of masks while inside the school building.  Now, regarding those exemptions …  

The Medical Exemption for Mask Wearing:  In a very important pronouncement, the SDE proclaims that the need for a medical exemption for the wearing of masks “is rare.”  The SDE states that “medical contraindications” to the wearing of masks “are generally limited to individuals suffering from severe chronic obstructive pulmonary disease (COPD) such as might be seen with cystic fibrosis, severe emphysema, heart failure, or significant facial burns that would cause extreme pain or interfere with the healing of a skin graft.”  The SDE then notes that these “severe medical conditions will be rare in students or staff capable of presenting to the school for work or instruction”, as these “individuals would not be able to move about freely without significant assistance.”  The SDE states for “for anyone suffering from any of these underlying conditions, the strong recommendation would be for that person to remain at home and engage in fully virtual learning due to their risk of developing severe complications if they did become infected with COVID-19.”  Undercutting anticipated reasons for requested medical exemptions, the SDE announces: “Mild or intermittent respiratory or other common conditions such as asthma, cardiovascular diseases, kidney disease, or other similar conditions are generally not considered contraindications to the wearing of loose-fitting face coverings.”  On its face, the SDE has significantly limited the broader “medical condition” exemption to mask wearing that exists for the public at large.  The SDE is almost saying that if you have a condition consistent with its newly pronounced exemption, perhaps you should not be coming to school.

Students with disabilities: The SDE does note that aside from medical contraindications, there may be other situations where exemptions to mask wearing should be considered.  The SDE offers as an example that “those with developmental disabilities may not tolerate or be able to comply well with mask wearing in schools, but this alone should not be a basis for their exclusion” from school.  Schools must assess, on an individualized basis, the appropriate accommodations for students with disabilities who are unable to wear a mask; the SDE notes that students and staff involved with certain special education activities (e.g., speech therapy or where lip reading is required) may need to be exempted from wearing a mask intermittently.  In cases where an exception is requested based upon a disability, a Planning and Placement Team or Section 504 meeting “as appropriate” should be held to consider possible programming revisions or appropriate accommodations.  The SDE states the obvious that with respect to such cases where masks will not be in use, “the effective use of other key mitigation strategies such as maximizing distancing, moving activities outdoors or to a well-ventilated space, and/or the use of face shields or other physical barriers will be extremely important to the protection of the students and staff involved.” 

What does this all mean?  Mask policies that the SDE required schools to implement via its prior June 29, 2020 guidance may have to be revised.  This may be difficult, since some schools had already begun in-person classes by the time the new Interim Guidance was issued; in addition, the requirement of a “board approved policy” on mask exemptions (which is contrary to prior guidance that permitted the school administration to make may COVID-19 related decisions) could cause some delays.  If your school has a COVID-19 policy in place, the school administration may already have the power to take immediate action to comply with the updated guidance pending any further policy revisions. 

Schools may now have to deal with parents who may have provided documentation consistent with Executive Order 7NNN, which permitted an exemption to mask wearing for anyone for whom doing so would “be contrary to his or her health or safety because of a medical condition.”  A simple “medical condition” may no longer be enough.  Schools should notify parents as soon as possible regarding these revised requirements.  With respect to students with disabilities, the latest Interim Guidance does suggest that schools cannot exclude such students who cannot wear a mask from school, but does note that accommodations for the students (and protections for others) must be considered.                 

Please Note: The Interim Guidance continues to permit mask breaks, along with the temporary removal of masks while eating, drinking or while outside under certain circumstances. There are other provisions in the “Interim Guidance” that address the types and styles of (acceptable) masks and other face coverings which will be discussed at a later time. Pullman & Comley has policy templates and other useful resources available to assist Connecticut schools in considering and implementing their options and navigating the web of executive orders, laws, regulations, and other state and federal guidance related to COVID-19.  Please contact any of our School Law attorneys for assistance.