How should schools handle mask guidelines now?

The following article is merely an informational statement of existing state masking guidelines for K-12 schools and not an endorsement of their validity or veracity. Tyler Law alongside Advocates for Faith and Freedom are actively challenging masking regulations throughout the state on behalf of various students and schools.

CAL/OSHA and Employees

On June 17, 2021, Governor Gavin Newsom signed an executive order updating the COVID-19 Prevention Emergency Temporary Standards to reflect a vote by the Occupational Safety and Health Standards Board.[1] The revised regulations included a few changes to masking guidelines for employees.[2]

In certain indoor settings, all employees, regardless of vaccination status must wear a face covering if required by CDPH order.[3] K-12 educational facilities fall directly under this CDPH requirement and all the new guidelines state that employees must wear masks indoors in the presence of students.[4] The guidelines further state that masks may be removed only by fully vaccinated employees when outside of the presence of children or when in their private offices.[5]

Face coverings are not required outdoors; However, employers are required to communicate to workers that face coverings are still highly recommended for unvaccinated employees who are in outdoor situations where six feet of physical distancing cannot be maintained.[6] School employers must still continue to provide face coverings to unvaccinated persons and make them available to their employees.[7]

According to the new guidelines, where face coverings cannot be used by teachers or administrators for pedagogical or developmental reasons, like communicating or assisting young children or those with special needs, “a face shield with a drape (per CDPH guidelines) can be used instead of a face covering while in the classroom as long as the wearer maintains physical distance from others.”[8] However, after the need subsides, staff are required to return to wearing a regular face covering.[9]

Students

On July 12, 2021, the California Department of Public health released guidelines, including mask mandates, for the 2021-2022 school year.[10] All K-12 students are required to wear masks indoors regardless of vaccination status. The only exemptions available to students are as follows:   

1. Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.[11]
2. 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.[12]
3. Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.[13]

Despite these conditions, students exempted from wearing a face covering are still required to wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.[14]

Enforcement

All K-12 schools are by the CDPH required to develop and implement “local protocols” to enforce all applicable mask requirements.[15] Public health officials have stated that unless an exemption applies, administrators must develop and implement protocols to ensure all students and staff wear masks indoors in K-12 school settings.[16] While the guidance does not explicitly require students to be sent home from school settings for failing to wear masks, schools may not allow unmasked students in indoor settings without an exemption and only have discretion with how to punish them for violations.[17]

Additionally, private schools, while not required, are advised to offer “alternative educational opportunities for students who are excluded from campus because they will not wear a face covering.”[18] Public schools, on the other hand, are subject to the requirements in AB 130 to offer independent study programs for the 2021-22 school year.[19]

Ambiguities

To date, no agency guidance states any policy or consideration regarding masks in the context of the numerous activities students take place in on a daily basis that require masks to be removed. These activities include band, theater, indoor sports, or close contact outdoor sports. Additional information is likely forthcoming from the CDPH. However, schools who wish to conduct these activities immediately should probably discuss this with legal counsel.

At Tyler Law we are actively litigating many cases and matters on behalf of schools throughout the state of California. This includes litigation and advisory surrounding restrictions places on schools surrounding the Covid-19 pandemic. If you or your organization feel the need for advisory or council, please contact us.