Education Law Notes  

Last week, my law partner, Zachary D. Schurin, wrote about Governor Lamont latest/revised Executive Order – Executive Order #13A–  concerning the wearing of masks (and/or other cloth facial coverings).  While Executive Order #13A maintains the prior general indoor mask mandate for only the unvaccinated (at least until the Order expires on September 30, 2021), it empowers local governmental bodies to issue their own universal mask mandates in their facilities (regardless of vaccination status).  It appears that several municipalities have accepted this invitation to impose such mandates.

Of great importance to Connecticut schools, Executive Order #13A continues to empower Connecticut’s Department of Public Health (DPH) to issue specific rules designating facilities where masks are universally mandated (even for the vaccinated); it also continues to empower Connecticut’s State Department of Education (SDE) via its Commissioner to issue school specific operational rules, including mask requirements.

Pursuant to this Executive Order, last weekend (on August 7, 2021), the DPH issued its updated listing of facilities where masks are always required, regardless of vaccination status. The listing includes inside PreK-12 public and private school buildings (exclusive of any dormitories) at times when students are present.  The listing notes that as an example, fully vaccinated custodians or office staff do not need to wear a mask when in a school building on a weekend or after hours when students are not present inside the building.  In that same August 7, 2021 listing, the DPH also included school buses as locations where masks are always required to be worn, regardless of vaccination status.  

Theoretically, the SDE could issue rules or other binding guidance before the school year opens that contradicts or varies what the DPH has required.  Indeed, it is our understanding the SDE is in the process of reviewing if not finalizing its own masking protocols for schools.  However, in the absence of the SDE taking any action to develop its own rules, the mandates for school buildings issued by the DPH referenced above will be in place at least until at least September 30, 2021 (unless the Governor issues a subsequent Executive Order or the DPH issues a revised listing/rule).  Simply put, in the absence of any further action by the SDE, the DPH or the Governor, schools should be prepared to implement a universal masking requirement for students and staff until at least September 30, 2021, regardless of a school’s decisionmaker’s own views.

It should be noted that Executive Order #13A generally does not require the wearing of masks outdoors. In addition, in a nod to common sense and practicality, masks do not have to be worn while eating or drinking.  More importantly, Executive Order #13A contains a health, safety, behavioral, medical and disability related exemption.  Specifically, Executive Order #13Aexpressly provides that nothing in the Order shall require the use of masks (or cloth face coverings) by anyone “for whom doing so would be contrary to his or her health or safety because of a medical condition, behavioral condition, or disability, or anyone under the age of 2 years.”  Similar to prior Executive Orders over the last year, Executive Order #13A provides that any person who declines to wear a mask because of a medical condition, behavioral condition, or disability shall be exempt from any requirement to wear masks if (AND only if) the person provides written documentation that the person is qualified for the exemption “from a licensed or certified medical provider, psychologist, marriage and family therapist, professional counselor, social worker, or behavior analyst, the Department of Developmental Services or other state agency that provides or supports services for people with emotional, intellectual or physical disabilities, or a person authorized by any such agency.”  The Order states that this documentation does not specifically have to name or describe the condition that qualifies the person for the exemption.  However, it would be a reasonable surmise that (as was the case during the 2020-2021 school year) the SDE will provide further direction to problems that are unique in the schools, such as protocols for possible exemptions for students with disabilities and/or who require special education and related services. Stay tuned. 

Please contact one of Pullman & Comley’s School Law attorneys if you have any questions or concerns regarding Executive Order #13A, mask issues, or any other COVID-19 compliance issues. In addition, please keep your eyes peeled for further news about our firm’s upcoming webinar that will address the many practical issues that Connecticut schools face as they reopen for the 2021-2022 school year (including mask issues).