Don’t take off that mask just yet! Interpreting Face Covering Guidance as of June 15, 2021

06.14.2021

On June 9, 2021, the California Department of Public Health (“CDPH”) issued new Guidance for the Use of Face Coverings which will become effective June 15, 2021, when California aims to fully reopen the state.

The CDPH guidance describes circumstances when even fully vaccinated individuals will still be required to wear masks after June 15, 2021. The CDPH has not yet made any explicit exceptions for individuals who are indoors in K-12 schools, childcare and other youth settings. This can be interpreted to mean that both fully vaccinated individuals and unvaccinated individuals, including school-aged children, should continue to wear masks while indoors at a K-12 school. However, CDPH goes on to indicate in the same guidance the following exemptions:

Persons younger than two years old; very young children must not wear a mask because of the risk of suffocation.
Persons with a medical condition, mental health condition, or disability that prevents wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
Persons who are hearing impaired, or when communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.

The CDC may release updated guidance for K-12 schools in the future, but until then, K-12 schools should not make any changes to their existing COVID-19 prevention strategies and protocols regarding the use of masks, face coverings, and physical distancing.

When it comes to the use of masks, face coverings, and physical distancing, K-12 schools must also be mindful about schools’ responsibilities under applicable civil rights and disabilities rights laws, including Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act.

On May 13, 2021, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a series of Questions and Answers which further detail considerations for schools as they reopen safely and in furtherance of supporting equity among students. OCR reminds school districts that they are required to provide a free appropriate public education (“FAPE”) even when a student with a disability cannot wear a mask, maintain physical distance, or adhere to other public health requirements, including going so far as to recommend relaxing safety standards “if other prevention strategies can be followed,” such as “correct and consistent masking and additional Personal Protective Equipment (PPE) for others who work or learn with the student.” The following is a summary of some of OCR’s answers to commonly asked questions regarding students with disabilities.

Under Section 504, are schools required to make modifications for students regarding mask wearing?

Students with disabilities who cannot safely wear a mask because of their disability in accordance with public health guidelines should not be required to wear one. For students with disabilities who, because of their disability, cannot safely wear a mask, the school must determine based on a student’s individual circumstances whether that student is able to attend school safely when other prevention strategies can be followed, in accordance with public health guidance. In some circumstances, requirements under Section 504 might require FAPE to be provided remotely. Whether attending school in-person or remotely, students who cannot wear a mask due to their disability must not be denied services or disciplined for being unable to comply with mask requirements and must continue to receive instruction on a nondiscriminatory basis.

Must schools consider the student’s 504 plan when addressing the student’s disability-related needs that might be affected by physical distancing?

Yes. Physical distancing might be difficult for students who have both visual and auditory impairments and require tactile interpreting or for students with disabilities whose education needs require close contact with school personnel. Schools must take an individualized approach in determining how physical distancing might affect the services provided to students with disabilities and make decisions about in-person or remote learning, as appropriate. Also, the use of positive behavioral interventions and supports might be helpful for students with disabilities to ensure they receive reminders about new safety procedures.

Must schools develop cohorts in a way that ensures the inclusion or integration of students with disabilities with their nondisabled peers, consistent with Section 504 or with students’ IEPs?

Yes. When developing cohorts, students with disabilities must be included with their nondisabled peers to the maximum extent appropriate for their needs, consistent with Section 504 requirements and public health requirements regarding COVID-19 spread prevention.

For further information regarding the new CDPH guidance, please see our Firm’s June 10, 2021, Alert.

To navigate some of these individual scenarios or if you have any questions regarding this Alert, you can contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.