Mask Guidance has Changed & Mask Laws Will Change Mid-School Year

With the Ohio Department of Health’s new 2021-2022 mask guidance, Ohio school districts received new recommendations on masks for the upcoming school year. Unfortunately, hours after the ODH’s guidance was released, the CDC announced guidance that differed from the ODH.  Further complicating matters, the General Assembly recently passed a law that —when it becomes effective on October 13th —will regulate when a school district can require masks.

What is a school district permitted to do? What is it required to do?  The answer is complicated.  And the answer will change as the 2021-2022 school year progresses.

The Order Requiring Masks Expired

First, recall that during the 2020-2021 school year, the Ohio Department of Health required school districts to adopt a mask policy, which in turn, required masks to be worn in a school building. However, on June 2, 2021, that order expired.

Once the order expired, boards of education regained local control regarding masking in schools.  A board could rescind, amend, or keep its mask policy.  Many boards decided to wait for further guidance and legislation.  That guidance and legislation have come, but they are not uniform.

ODH and CDC Release New Guidance

On July 27, 2021, the Ohio Department of Health released guidance for Ohio K-12 Schools for the 2021-2022 school year (“21-22 ODH Guidance”).  The 21-22 ODH Guidance “strongly recommends that those who are unvaccinated wear masks while in school.”  The 21-22 ODH Guidance further distinguished between indoor activities where masks are recommended and outdoor activities where masks are unnecessary.  It also identified certain exceptions to wearing a mask. However, unlike last year’s guidance, the 21-22 ODH Guidance is not supported by an order mandating that school districts comply.

Hours later, the Center for Disease Control (“CDC”) announced its own revised guidance.  The revised CDC guidance recommended, “[…] universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of vaccination status.”  This guidance reflected a change from the CDC’s July 9, 2021, guidance, which only recommended masks for unvaccinated individuals.  The CDC guidance also differed from ODH guidance.

Remember, the ODH and CDC have issued guidance, not mandates.  As a result, boards can incorporate guidance from either ODH or CDC but are not required to do so.

H.B. 244 will Prohibit Differentiated Masking Policies

When considering whether to incorporate guidance into a board policy, boards also need to consider recently passed legislation. H.B. 244, which becomes effective on October 13, 2021 (i.e., the middle of the school year), will prevent a school district from discriminating against an individual who has not received a COVID-19 vaccine.  H.B. 244 expressly prohibits a school district from:

requiring [an unvaccinated] individual to engage in […] activities or precautions that differ from the activities or precautions of [a vaccinated] individual […].

H.B. 244’s restrictions will only apply until a vaccine receives “full approval”[1] from the FDA.  When a vaccine receives full approval, then a school district may adopt differentiated mask rules/policies.  However, at this time, no vaccines have received full approval.

In other words, until a vaccine receives full approval, H.B. 244 will require school districts to treat vaccinated and unvaccinated individuals in the same way regarding activities and precautions.  As it relates to masking, H.B. 244 appears to suggest that a school district may not create different rules for unvaccinated individuals (i.e., require masks) and vaccinated individuals (i.e., not require masks).

In this way, H.B. 244 could be at odds with how a school district drafts or implements its mask policy. For example, if a board’s policy “requires” masks for all unvaccinated individuals but does not “require” masks for vaccinated individuals, it will run afoul of H.B. 244. As a result, these boards will need to revisit their policy by October 13, 2021.

To be clear, H.B. 244 will not mandate masks or a mask policy. Instead, H.B. 244 restricts the type of mask policy that may be adopted—if a board adopts one.  Remember, H.B. 244 does not become effective until October 13, 2021.

The issue of masks has returned for the 2021-2022 school year.  If you require any assistance in amending or developing your Board policy, do not hesitate to contact us.

[1] However, H.B. 244’s “full approval” language is not written precisely.  It does not define what full approval means.  To date, Moderna has only sought “full approval” for use in individuals aged 18 and older.  Pfizer has only sought “full approval” for use in individuals aged 16 and older.  Indeed, neither Moderna nor Pfizer has any approval for individuals aged 12 and younger.  It remains to be seen how the “full approval” language will be interpreted.

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