High school sports are back! Fans are excited. So excited that they forgot to wear a mask. Or did they forget? What if a spectator claims they have a medical condition? Can the district require them to provide a doctor’s note?
Per the Department of Health, spectators must wear masks,[i] unless any of the allowable facial covering exceptions are applicable.[ii] Some exceptions applicable to athletic events include the following:
- “The individual is under ten years of age;”
- The individual has “a medical condition, including respiratory conditions that restrict breathing, mental health conditions, or disabilities that contraindicate the wearing of a facial covering;”
- “The individual is communicating or seeking to communicate with someone who is hearing-impaired or has another disability, where the ability to see the mouth is essential for communication;” or
- “The individual is actively participating in broadcast communications.”
The exception most frequently raised by spectators (often parents) – and which in turn gives school districts most headaches – is when an individual has a medical condition that contraindicates the wearing of a facial covering. Spectators may claim that wearing a mask compromises their physical or emotional safety.
If a spectator claims they have a medical or mental health condition – can districts require them to provide doctors’ notes? The answer is “no.” Currently, neither the July 23, 2020 Order regarding facial coverings, nor the August 28, 2020 Order regarding athletics, requires spectators to provide such notes. This conclusion is bolstered by the Director’s August 28, 2020 Order which states that school districts must provide written justifications to local health officials explaining why athletes, coaches or volunteers are not wearing masks, but are not required to provide any justification regarding spectators.
Thus, school districts cannot require spectators to provide doctors’ notes, nor are districts required to provide justifications to local health officials why spectators are not wearing masks. This seems simple enough, until you remember that the Ohio High School Athletics Association (“OHSAA”) recently launched a COVID-19 Observer’s Program, whereby designated individuals attend contests to ensure that the Director’s Orders are being followed. While the observers do not police the requirements set forth in the Orders, they do report to OHSAA on what they find. And among their findings they report on whether “spectators are properly wearing facial coverings”[iii] and whether spectators “wore face coverings in a manner consistent with the ODH’s orders.”[iv] If reported, how does a district prove spectators are properly wearing or were permitted not to wear facial coverings in a manner consistent with the Orders? In turn, how can the OHSAA know if the district is complying with the safety guidelines?
Pointers to Consider
Here are some practical pointers for school districts to consider – to ensure compliance:
- Issue public announcements reminding spectators that they are required to wear masks at all times.
- Remind spectators that the team’s season depends on the cooperation and support from everyone to follow the safety guidelines set by the Ohio Department of Health, the Governor’s Office and the OHSAA.
- Encourage those who are claiming an exception to contact the school’s Compliance Officer.[v]
- The Compliance Officer should note the reason why a spectator is not wearing a mask. This information can then be provided to the OHSAA observer. And although this information need not be provided to a local health official, it provides an added layer of security for the district.
- Designate specific areas for spectators with exceptions. While those without masks may be entitled to observe an event due to requirements set forth by the Americans With Disabilities Act, they are not entitled to sit wherever they want or endanger other spectators.
- Follow other mandatory requirements for spectators found in the Director’s August 28, 2020 Order including, but not limited to, the requirement that family members sit together, socially distanced from other individuals/family groups, and that spectators do not congregate before or after games.
- When in doubt, contact legal counsel.
Finally, it should be noted that on September 9, 2020, a group of families filed a lawsuit in Putnam County – challenging the Director’s mandatory mask mandate in child educational settings. A similar lawsuit was previously filed in Muskingum County. Stay tuned for updates – as these lawsuits could impact the requirements to wear masks.
[v] Each school must designate a Compliance Officer who is responsible for the compliance of the August 28, 2020 Order. Typically, it is the Athletic Director.