Legal Update Memo No. 28-2021 – CDPH Toughens Stance on K-12 Mask Mandates; and Masking FAQs (K-12)

Download pdf: 28-2021 CDPH Toughens Mask Mandate and Masking FAQs (JH)

On August 23, 2021, the California Department of Public Health (“CDPH”) issued its “Requirement for Universal Masking Indoors at K-12 Schools.”[1] The CDPH states: “To be clear: failure to enforce the mask requirement breaches not only a legal duty, but also the first and foremost duty of every school leader—to protect students.”

CDPH reiterates and clarifies that it’s updated August 2, 2021, Guidance for K-12 Schools universally required indoor masking for students and adults, with some exceptions, as well as required schools to “develop and implement local protocols to enforce the mask requirements.”[2]  In short, while Local Educational Agencies (“LEAs”) have flexibility over how to enforce the mask requirement, they do not have the discretion to opt out of enforcing the mask mandate.

The CDPH then outlines several legal risks schools take by not enforcing the mandate, which include financial liability if a student or staff member dies as a result of failure to enforce the mask mandate, civil lawsuits, Commission on Teacher Credentialing (“CTC”) disciplinary action for administrators, and fines or civil enforcement actions by local health officers.

Frequently Asked Masking Questions:

Is there an outdoor mask mandate?

Although the CDPH is currently saying masking is optional outdoors in K-12 settings, your county may be stricter. For Sonoma County districts, please note that as of August 23, 2021, the Sonoma County Department of Health Services and the Sonoma County Office of Education are now jointly “strongly recommending” outdoor masking in most school settings. Socially distanced outdoor mask breaks are acceptable.

What types of masks are required?

The CDPH does not designate which type of face coverings are required. The CDPH recommends (but does not mandate) specific types of masks in its June 21, 2021 “Get the Most out of Masking” website post.[3] If N95 masks are not available or feasible, a three-layer cloth mask, a fitted surgical mask, or a disposable mask doubled with a cloth mask are recommended. The CDPH does not recommend cloth masks with less than 3 layers, bandanas, or gaiters. Similarly, Cal-OSHA COVID-19 Emergency Temporary Standards (“ETS”), which apply to all employees, do not consider bandanas, gaiters, or single layers of fabric to be a sufficient “face covering.”[4]

Does the District have to provide masks?

Schools must provide a face covering to students who forget to bring one.[5] For employees, Cal-OSHA’s ETS states that “employees can request face coverings from the employer at no cost to the employee.” (ETS, Section 3205(c)(5)(J)).

How to respond to students who refuse to mask:

If the parent provides documentation from a licensed medical professional that substantiates a disability, engage in the interactive process.[6] Students without a documented disability who refuse to mask should be subject to the LEA’s enforcement protocols that schools are required to adopt. CDPH also notes that “schools should offer alternative educational opportunities for students who are excluded from campus because they will not wear a face covering” and “public schools should be aware of the requirements in AB 130 to offer independent study programs for the 2021-22 school year.”[7]

How to respond to employees who refuse to mask:

If the employee provides documentation from a licensed medical professional that substantiates a disability, engage in the interactive process. Employees without a documented disability, who refuse to mask that share indoor space with students (or elsewhere if county rules require it), should be subject to the LEA’s enforcement protocols that schools are required to adopt. This may include progressive discipline for failure to follow orders.

Verified medical exemption for mask wearing:

As per the August 2, 2021, CDPH Guidance:

  1. Persons exempted from wearing a face covering due to a medical condition, must wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1]https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Requirement-for-Universal-Masking-Indoors-at-K-12-Schools.aspx.

[2] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.

[3] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Get-the-Most-out-of-Masking.aspx.

[4] https://www.dir.ca.gov/oshsb/documents/Jun172021-COVID-19-Prevention-Emergency-apprvdtxt-Readoption.pdf.  Section 3205(b)(8)

[5]https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.  Section 1d

[6] Through a meeting held in accordance with Section 504 of the Rehabilitation Act of 1973 (“Section 504”) or an Individualized Education Program (“IEP”) meeting held in accordance with the Individuals with Disabilities Education Act (“IDEA”).

[7] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.

Legal Update Memo No. 27-2021 – AB 130 Independent Study 30 Days to Sign Agreement (K-12)

Download pdf: 27-2021 AB 130 Independent Study 30 Days to Sign Agreement (CDC)

Our office has received questions regarding the 30-calendar day allowance for a Local Educational Agency (“LEA”) to obtain a signed written agreement for a student to participate in Independent Study (“IS”) during the 2021-2022 school year.  As discussed in more detail below, for the 2021-2022 school year only, LEAs have 30 calendar days from the date of the student’s first day of participation in IS to obtain all required signatures on the IS agreement.  This means in the case of a student who starts participating in IS on, for example, October 1, 2021, the LEA will have until October 31, 2021, to obtain the required signatures on the IS agreement. So, while LEAs have a duty to comply with all instructional requirements for IS as soon as the student begins participating in IS, the LEA has 30 calendar days to obtain all required signatures on the IS agreement.

Assembly Bill (“AB”) 130 amended the independent study statutes to provide, in part:

(F) Notwithstanding subparagraph (A), for the 2021–22 school year only, a local educational agency shall obtain a signed written agreement for independent study from the pupil, or the pupil’s parent or legal guardian if the pupil is less than 18 years of age, the certificated employee who has been designated as having responsibility for the general supervision of independent study, and all persons who have direct responsibility for providing assistance to the pupil no later than 30 days after the first day of instruction. This subparagraph does not relieve a local educational agency from the obligation to comply with the requirements of this article, as amended by the act adding this subparagraph, upon commencement of instruction for a participating pupil in the 2021–22 school year.[1]

Our interpretation of this legal issue is based on the August 23, 2021, updated Frequently Asked Questions (“FAQ”) from the California Department of Education (“CDE”) and communications with the CDE.[2]

Specifically, CDE’s FAQ 17 and 78 read as follows:

17.  May a school counselor or administrator enroll a new pupil and assign work for the first assignment period in traditional independent study?

The following codes and regulations guide schools in claiming attendance credit:

  • Each written agreement shall be signed, prior to the commencement of independent study, by the pupil, the pupil’s parent/guardian, if the pupil is less than eighteen years of age, the certificated employee who has been designated as having responsibility for the general supervision of independent study, and all persons who have direct responsibility for providing assistance to the pupil. ECsections 51747(g)(9)(A) and 51749.6(b)(1), except for the 2021–22 school year only, LEAs shall secure the required signatures no later than 30 days after the first day of instruction. EC Section 51747(g)(9)(F).
  • The independent study by each pupil must be coordinated, evaluated, and, notwithstanding subdivision (a) of EC Section 46300, must be under the general supervision of an employee of the LEA who possesses a valid certification document pursuant to EC Section 44865 or an emergency credential pursuant to EC Section 44300 for traditional independent study, or who holds the appropriate subject matter credential for CBIS. EC sections 51747.5(a) and 51749.5(a)(3)
    • “General supervision” means the supervising teacher’s:
  • Continuing oversight of the study design, implementation plan, allocation of resources, and evaluation of pupil progress for any pupil’s independent study; and
    • Personal determination or personal review of the determination made by another certificated teacher of the time values for apportionment purposes of each pupil’s work products. 5 CCR11700(b)

[Emphasis Added]

78. Are pupils allowed to start instruction before all required signatures are on the written agreement?

Yes. For the 2021–22 school year only, LEAs shall allow pupils to begin instruction before all signatures are on the written agreement; however, required signatures shall be affixed on the written agreement no later than 30 days after the pupil’s first day of instruction. Failure to do so may have fiscal implications for the LEA, including a loss of ADA. EC Section 51747(g)(9)(F).

Via email correspondence between our office and a CDE consultant on August 23, 2021, the CDE consultant stated the following:

“The intent of the legislation is that for the 2021-22 school year only, LEAs shall obtain all required signatures within 30 days of the first day of the pupil’s participation in independent study instruction.”

 

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code section 51747(g)(9)(F).

[2] https://www.cde.ca.gov/sp/eo/is/faq.asp.

Legal Update Memo No. 26-2021 – Consent for Students for COVID-19 Testing (K-12)

Download pdf: 26-2021 – Consent for Students for COVID-19 Testing w attachment

Our office has received various questions on who can provide consent for a student to be tested for COVID-19.  As described in more detail below, consent can be provided by:

  1. A student’s parent (or other adult legally responsible for the student) for a student under the age of eighteen; or
  1. A student who is at least thirteen years of age.

The California Department of Public Health (“CDPH”) has issued various Guidance on testing students at school including on January 14, 2021, “Testing Considerations for LEAs and School Communities;” on April 21, 2021, “California K-12 School Antigen Testing Program Playbook;”[1] and on July 12, 2021, “K-12 school-based COVID-19 testing strategies for school year 2021-22.”[2]  Among other issues discussed in the various CDPH Guidance is the issue of consent for testing students.  The CDPH Guidance states:

Because SARS-CoV2 is recognized as a communicable disease,  which is required to be reported, California state law provides that minors 13 years and older can consent to diagnosis and treatment of COVID-19. Accordingly, for students under the age of 13, the parent or guardian must provide consent, and use their email/phone to obtain results. A parent or guardian can receive the results on behalf of a child (ages under 13) when they provide consent on behalf of that child.[3]

Included in the CDPH Guidance is the following table:

 

Age range Consent Results Reporting
< 13 Parental consent required Parent only
13-17 Parental consent possible, but not necessary Student by default, parent can be added
>=18 No parental consent required Student only

While CDPH does not cite any specific legal authority in its Guidance, CDPH seems to be relying on Family Code section 6926, which provides:

(a) A minor who is 12 years of age or older and who may have come into contact with an infectious, contagious, or communicable disease may consent to medical care related to the diagnosis or treatment of the disease, if the disease or condition is one that is required by law or regulation adopted pursuant to law to be reported to the local health officer, or is a related sexually transmitted disease, as may be determined by the State Public Health Officer.

Furthermore, Title 17 of the California Code of Regulations, section 2500, subsection (j) provides that “Coronavirus disease 2019 (COVID-19)” is a disease or condition that health care providers must report to the local health officer.

Therefore, our office agrees that students thirteen years of age or above may provide consent and directly receive the results of COVID-19 testing.

After a student’s parent (or the student who is thirteen years of age or above) consents to testing, testing may proceed at school without the parent being present.[4]  As described in the CDPH chart above, when the student’s parent consents to testing, the test results should be provided to the parent.  For a student who is thirteen years of age or above, the test results should be provided to the student and, in addition, we believe should also be provided to the student’s parents.[5],[6]

Attached to this Legal Update is a model student consent form for COVID-19 testing.  Also, the previously-referenced CDPH “California K-12 School Antigen Testing Program Playbook” contains, starting on page 46 of the 58-page document, a model consent form for a student to participate in a rapid antigen school-based testing program for a one year period.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://testing.covid19.ca.gov/wp-content/uploads/sites/332/2021/04/School_Antigen_Testing_Playbook.pdf.

[2] https://testing.covid19.ca.gov/wp-content/uploads/sites/332/2021/07/School-Testing-Considerations.pdf.

[3] “Testing Considerations for LEAs and School Communities” (January 14, 2021, CDPH), page 5.

[4] Please note that while parents are not legally required to be physically present to provide written consent for their child to be tested, our understanding is that some testing vendors are requiring that a student’s parent be physically present in order to provide written consent for testing for children twelve years of age and under.

[5] While Education Code section 46010.1 allows for a student in grades 7th through 12th to obtain confidential medical services without the consent of the student’s parent, the results of COVID-19 testing will become a student record in accordance with Education Code section 49061 and, as such, we believe the test results should be shared with the student’s parent as “…necessary to protect the health or safety of a pupil or other persons” [such as the parent and other individuals within the student’s home] in accordance with Education Code section 49076(a)(2)(A).

[6] Also, as the testing results are a student record, the results fall under the Family Educational Rights and Privacy Act (“FERPA”) not under the Health Insurance Portability and Accountability Act (“HIPAA”): https://www.hhs.gov/hipaa/for-professionals/faq/513/does-hipaa-apply-to-an-elementary-school/index.html.

Legal Update Memo No. 25-2021 – CDPH Orders School Employee Vaccination Verification (K-12)

Download pdf: 25-2021 CDPH Orders School Employee Vaccination Verification (JH) w attachment

On August 11, 2021, California Department of Public Health (“CDPH”) issued a State Public Health Officer Order (“Order”) for all public and private K-12 schools to verify whether their workers are vaccinated.[1] This Order applies to all public and private schools serving students in transitional kindergarten through grade 12, but does not apply to home schools, child care, or higher education. The Order goes into effect on August 12, and all schools must be in full compliance by October 15. Employees who are not fully vaccinated must be tested at least once a week.

The new requirements, for all K-12 Schools:

  • All K-12 schools must verify the vaccine status of all of its workers by October 15. Proof of vaccination can be from the person’s COVID-19 Vaccination Record Card, a photo of the Vaccination Record Card, health care provider documentation, or a SMART Health Card digital record. In the absence of knowledge to the contrary, a school may accept the documentation as valid.
  • Unvaccinated workers are required to undergo PCR or antigen testing at least once weekly. Free testing resources are available through the California Schools Testing Program.[2] Schools may also use ESSER funds, GEER funds, and In-Person Instruction Grant funds (AB 86).
  • Schools must have a plan for tracking worker vaccination status. Records of the verification must be made available upon request to the local health jurisdiction. Schools must also have a plan for tracking test results and conducting contact tracing.
  • Workers who are not fully vaccinated (only received 1 of 2 doses) or who do not provide vaccination records, are considered unvaccinated.
  • Applies to “workers,” defined as all paid and unpaid adults serving in the school setting, including certificated, classified staff, private school teachers/staff, and volunteers who are on campus.[3]

This Order does not affect the August 2, 2021 CDPH Guidance requiring masking indoors for all students and adults sharing a space with students.[4]

The Order is supported by Governor Newsom, California Teachers Association (CTA), California School Employees Association (CSEA), Service Employees International Union (SEIU), California State PTA, California Federation of Teachers (CFT), Association of California School Administrators (ACSA), and California Charter Schools Association (CCSA).[5]

Attached is a sample Employee Vaccination Verification Form for districts to use.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://www.gov.ca.gov/2021/08/11/california-implements-first-in-the-nation-measure-to-encourage-teachers-and-school-staff-to-get-vaccinated/.

[2] https://testing.covid19.ca.gov/school-testing/.

[3] Based on the broad language of the Order (all public and private schools), a conservative approach is to consider all administrators, including the superintendent, and other “district office” staff to be “workers” subject to this mandate. The definition of “worker” does not appear to include elected officials, such as district/county board of education trustees and county superintendents. That said, these elected officials may choose to participate in their agencies’ immunization verification process.

[4]  https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.

[5]  https://www.gov.ca.gov/2021/08/11/california-implements-first-in-the-nation-measure-to-encourage-teachers-and-school-staff-to-get-vaccinated/, https://edsource.org/2021/vaccinations-or-regular-covid-tests-required-for-all-california-school-staff-newsom-says/659414.

Legal Update Memo No. 14-2021(CC) – PERB Rules on Mandatory Vaccination for Employees (CCD)

Download pdf: 14-2021(CC) – PERB Rules on Mandatory Vaccination for Employees (KAS)

On July 26, 2021, the Public Employment Relations Board (“PERB”) issued its decision in AFSCME v. Regents of the University of California, PERB Decision No. 2783.[1]

The case involved two unions representing classified employees of the University of California (“UC”) system. The unions challenged the UC’s decision to implement a system-wide requirement that all employees and students “living, learning or working” on a UC campus receive the influenza vaccine. The unions alleged that the UC violated its duty to negotiate the decision to implement the policy, as well as the effects of the decision.

PERB held “the decision to adopt the influenza vaccination policy was outside the scope of representation because under the unprecedented circumstances of a potential confluence of the COVID-19 and influenza viruses, the need to protect public health was not amenable to collective bargaining or, alternatively, outweighed the benefits of bargaining over the policy as to University employees.” (Emphasis added.)

In reaching this conclusion, PERB specifically noted “no other safety precaution by itself, such as masking, social distancing, or social isolation, was sufficient to substitute for vaccination against influenza.” Furthermore, “mandatory influenza vaccination is not an issue that tends to create conflict between employees and management that could be resolved through collective bargaining…[it] is not one that divides people among management-union lines, but rather splits people – students, faculty, and staff – into those who can and will get vaccinated versus those who cannot or will not get vaccinated.”

The decision strongly supports management’s right to implement a mandatory vaccination policy. However, PERB found that while the decision is outside of the scope of collective bargaining, employers are required to engage in “effects” (or impact) bargaining with unions prior to implementation of the policy.

The general rule remains that “before implementing a non-negotiable change, the parties must first negotiate over aspects of the change that impact matters within the scope of representation.”

However, PERB did reaffirm that employers “may implement a decision on a non-mandatory subject prior to exhausting its effects bargaining obligation [when]: (1) the implementation date is based on an immutable deadline or an important managerial interest, such that delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiates in good faith prior to implementation and continues to negotiate afterwards as to subjects that were not resolved by virtue of implementation.”

The subject of mandatory vaccination policies is one that is ever evolving. Our office recommends that if you are interested in exploring this avenue, you work closely with legal counsel to address all concerns regarding adoption and implementation.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1]   The full text of the decision can be found here: https://perb.ca.gov/decision/2783H.

Legal Update Memo No. 24-2021 – PERB Rules on Mandatory Vaccination for Employees (K-12)

Download pdf: 24-2021 – PERB Rules on Mandatory Vaccination for Employees (KAS)

On July 26, 2021, the Public Employment Relations Board (“PERB”) issued its decision in AFSCME v. Regents of the University of California, PERB Decision No. 2783.[1]

The case involved two unions representing classified employees of the University of California (“UC”) system. The unions challenged the UC’s decision to implement a system-wide requirement that all employees and students “living, learning or working” on a UC campus receive the influenza vaccine. The unions alleged that the UC violated its duty to negotiate the decision to implement the policy, as well as the effects of the decision.

PERB held “the decision to adopt the influenza vaccination policy was outside the scope of representation because under the unprecedented circumstances of a potential confluence of the COVID-19 and influenza viruses, the need to protect public health was not amenable to collective bargaining or, alternatively, outweighed the benefits of bargaining over the policy as to University employees.” (Emphasis added.)

In reaching this conclusion, PERB specifically noted “no other safety precaution by itself, such as masking, social distancing, or social isolation, was sufficient to substitute for vaccination against influenza.” Furthermore, “mandatory influenza vaccination is not an issue that tends to create conflict between employees and management that could be resolved through collective bargaining…[it] is not one that divides people among management-union lines, but rather splits people – students, faculty, and staff – into those who can and will get vaccinated versus those who cannot or will not get vaccinated.”

The decision strongly supports management’s right to implement a mandatory vaccination policy. However, PERB found that while the decision is outside of the scope of collective bargaining, employers are required to engage in “effects” (or impact) bargaining with unions prior to implementation of the policy.

The general rule remains that “before implementing a non-negotiable change, the parties must first negotiate over aspects of the change that impact matters within the scope of representation.”

However, PERB did reaffirm that employers “may implement a decision on a non-mandatory subject prior to exhausting its effects bargaining obligation [when]: (1) the implementation date is based on an immutable deadline or an important managerial interest, such that delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiates in good faith prior to implementation and continues to negotiate afterwards as to subjects that were not resolved by virtue of implementation.”

Please note that the State Public Health Officer Order issued on August 11, 2021[2] does not obviate an employer’s obligation to bargain negotiable effects with their bargaining unit. Furthermore, schools may choose to implement vaccination and/or testing programs that are stricter than required pursuant to the Order. We recommend that your school contact legal counsel regarding any bargaining obligations in these areas.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] The full text of the decision can be found here: https://perb.ca.gov/decision/2783H.

[2] The Order may be accessed at: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Vaccine-Verification-for-Workers-in-Schools.aspx

Legal Update Memo No. 13-2021(CC) – CDPH Increases its Masking Requirements for All Californians (CCD)

Download pdf: 13-2021(CC) – CDPH Increases its Masking Requirements for all Californians – (JH)

In response to the Center for Disease Control’s (“CDC”) July 27, 2021 updated masking recommendations, which generally recommend wearing a mask indoors in public areas,[1] and the surge in Delta variant cases, the California Department of Public Health (“CDPH”) issued updated “Guidance for the Use of Face Coverings” on July 28, 2021.[2] The primary updates were to require or recommend “universal” masking indoors statewide, regardless of vaccination status, and to reference new requirements for unvaccinated workers in high-risk settings, in the State Health Officer Order dated July 26, 2021.

The new requirements, for all Californians:

  • Unvaccinated persons are required to wear masks in all indoor public settings and businesses, including restaurants, governing board meetings, and state and local government offices serving the public. In such places, the venue host has the option to:
  1. Allow individuals to self-attest to being vaccinated;
  2. Implement vaccine verification; or
  3. Require all individuals to wear masks, regardless of vaccination status.
  • All individuals are required to wear masks (regardless of vaccination status) on public transit (including buses) and in transportation hubs; indoors in childcare settings; in cooling centers; and in healthcare settings.
  • Fully vaccinated people are recommended to wear masks in other indoor public settings.
  • Follow local health jurisdiction’s orders if they are more restrictive than this guidance. For example, Bay Area counties jointly announced on August 2 that they are requiring face coverings to be worn, regardless of vaccination status, in all indoor public settings, venues, gatherings, and workplaces.[3]

CDPH updated its “Face Coverings Q&A” on July 28, 2021, which states:

Does this guidance apply to colleges and universities?

Yes, all unvaccinated students, staff and faculty are required to wear a mask in all indoor settings.  The University of California and the California State University systems have chosen to require vaccinations for students and faculty on campus. Institutions of Higher Education may use the same options as businesses to verify that someone is vaccinated.[4]

In workplaces, employees are subject to the Cal/OSHA COVID-19 Emergency Temporary Standards, which generally require unvaccinated employees to wear face coverings at work when indoors or in vehicles with others.[5] In addition, employees in the health care and “congregate settings” (such as correctional facilities and homeless shelters), must wear masks and either confirm vaccination status or undergo weekly or bi-weekly testing.[6]

Exemptions: Children younger than two years old, persons with a medical condition that prevents them from wearing a mask, persons who are communicating with the hearing impaired, and persons for whom wearing a mask would create a work risk, as determined by workplace safety regulations, are exempt from the masking requirements.

The CDPH Guidance “COVID-19 Industry Guidance: Institutions of Higher Education” dated September 30, 2020 still bears the disclaimer that it is no longer in effect and has been replaced by the Cal/OSHA COVID-19 Emergency Temporary Standards referenced above, which only apply to employees and not to students.[7] However, the link to the same CDPH Guidance from the California Community Colleges Chancellor’s Office website has not been updated with this disclaimer.[8]

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html.

[2] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx.

[3]  https://sonomacounty.ca.gov/CAO/Press-Releases/Officials-Urge-Immediate-Vaccination-Require-Face-Coverings-Indoors/; shttps://socoemergency.org/order-of-the-health-officer-of-the-county-of-sonoma-c19-25/ .

[4] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Face-Coverings-QA.aspx .

[5] https://www.dir.ca.gov/oshsb/documents/Jun172021-COVID-19-Prevention-Emergency-apprvdtxt-Readoption.pdf ; See our June 25, 2021 Legal Update regarding Cal/OSHA Regulations; https://sclscal.org/legal-update-memo-no-12-2021cc-cal-osha-guidance-harmonized-with-other-state-laws-orders-and-regulations-ccd/.)

[6] State Public Health Officer Order of July 26, 2021: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Unvaccinated-Workers-In-High-Risk-Settings.aspx.

[7]  https://files.covid19.ca.gov/pdf/guidance-higher-education–en.pdf

[8]  See link to “New State Guidance for Reopening Colleges and Universities” under “Guidance Memos” at https://www.cccco.edu/About-Us/Chancellors-Office/Divisions/Communications-and-Marketing/Novel-Coronavirus/co-communications-to-colleges.

Legal Update Memo No. 23-2021 – CDPH Increases its Masking Requirements for All Californians (K-12)

Download pdf: 23-2021 CDPH Increases its Masking Requirements for all Californians (JH)

In response to the Center for Disease Control’s (“CDC”) July 27, 2021 updated masking recommendations, which generally recommend wearing a mask indoors in public areas,[1] and the surge in Delta variant cases, the California Department of Public Health (“CDPH”) issued updated “Guidance for the Use of Face Coverings” on July 28, 2021.[2] The primary updates were to require or recommend “universal” masking indoors statewide, regardless of vaccination status, and to reference new requirements for unvaccinated workers in high-risk settings, in the State Health Officer Order dated July 26, 2021.

The new requirements, for all Californians:

  • Unvaccinated persons are required to wear masks in all indoor public settings and businesses, including restaurants, governing board meetings, and state and local government offices serving the public. In such places, the venue host (including school districts), has the option to:
  1. Allow individuals to self-attest to being vaccinated;
  2. Implement vaccine verification; or
  3. Require all individuals to wear masks, regardless of vaccination status.
  • All individuals are required to wear masks (regardless of vaccination status) on public transit (including buses) and in transportation hubs; indoors in K-12 schools; indoors in childcare settings; and in healthcare settings.
  • Fully vaccinated people are recommended to wear masks in other indoor public settings.
  • Follow local health jurisdiction’s orders if they are more restrictive than this guidance. For example, Bay Area counties jointly announced on August 2 that they are requiring face coverings to be worn, regardless of vaccination status, in all indoor public settings, venues, gatherings, and workplaces.[3]

In workplaces, employees are subject to the Cal/OSHA COVID-19 Emergency Temporary Standards, which already defer to separate CDPH guidance for youth settings such as K-12 schools.[4] In addition, employees in the health care and “congregate settings” (such as correctional facilities and homeless shelters), must wear masks and either confirm vaccination status or undergo weekly or bi-weekly testing.[5]

Exemptions: Children younger than two years old, persons with a medical condition that prevents them from wearing a mask, persons who are communicating with the hearing impaired, and persons for whom wearing a mask would create a work risk, as determined by workplace safety regulations, are exempt from the masking requirements.

Per the CDPH Guidance for K-12 schools issued July 12, and revised August 2, students are required to mask indoors, regardless of vaccination status, and adults are required to wear a mask when sharing indoor space with students.[6] The CDPH updated its separate Guidance for Child Care Providers and Programs on June 29, 2021, which now requires child care providers to comply with the above CDPH universal rules for face masks.[7]

The CDPH will separately issue guidance covering youth sports, and other youth activities such as band and drama.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html.

[2]  https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx.

[3]  https://sonomacounty.ca.gov/CAO/Press-Releases/Officials-Urge-Immediate-Vaccination-Require-Face-Coverings-Indoors/; shttps://socoemergency.org/order-of-the-health-officer-of-the-county-of-sonoma-c19-25/.

[4] Although employees are subject to the mandatory Cal/OSHA COVID-19 Emergency Temporary Standards (“ETS”), which generally allow confirmed vaccinated employees to forego masking while at work, the ETS defers to CDPH guidance regarding youth settings, and excludes indoor public settings. (See our June 25, 2021 Legal Update regarding Cal/OSHA Regulations; https://sclscal.org/legal-update-memo-no-12-2021cc-cal-osha-guidance-harmonized-with-other-state-laws-orders-and-regulations-ccd/.)

[5] State Public Health Officer Order of July 26, 2021: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Unvaccinated-Workers-In-High-Risk-Settings.aspx.

[6] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.

See our July 21, 2021 Legal Update regarding the CDPH K-12 Guidance: https://sclscal.org/legal-update-memo-no-21-2021-cdph-updates-its-k-12-schools-guidance-k-12/.

[7] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Child-Care-Guidance.aspx.

Legal Update Memo No. 22-2021- Use of Piggyback Contracts for Modular Building Projects (K-12)

Download pdf: 22-2021 Use of Piggyback Contracts for Modular Building Projects (LWS-EES)

On July 7, 2021 the Office of Public School Construction (“OPSC”) sent out an email blast to all California school districts and county superintendents of schools reminding them about the use of piggyback contracting to acquire modular and portable/relocatable buildings.

The email specifically referenced the 2006 Attorney General Opinion,[1] which held that a school district may not, without advertising for bid, enter into a piggyback contract to acquire factory-built modular building components that result in the assembly of permanent schools.

The OPSC email is a good reminder that piggyback contracts are limited to the purchase of personal property only. The Attorney General has expressly excluded factory-built modular building components that will be permanently affixed to a foundation from the definition of “personal property.” While portable or relocatable buildings may be purchased through a piggyback contract, the site preparation and installation of the building must still comply with the competitive bidding requirements.[2]

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://oag.ca.gov/system/files/opinions/pdfs/05-405.pdf

[2] Public Contract Code sections 20111 and 20112

Legal Update Memo No. 21-2021- CDPH Updates Its K-12 Schools Guidance (K-12)

Download pdf: 21-2021 New CDPH K-12 Schools Guidance (JH)

In response to the Center for Disease Control’s (“CDC”) July 9 updated K-12 schools’ recommendations[1], the California Department of Public Health (“CDPH”) issued updated K-12 Schools Guidance on July 12, 2021, which generally required masking indoors.[2] In response to backlash, on July 12, the CDPH issued a notification on Twitter that “California’s school guidance will be clarified regarding masking enforcement”.[3] Pending that clarification, the remaining guidance is effective immediately.

The fundamental intent of the guidance is for all students to have access to safe and full-time in-person instruction. Primary factors to follow in determining which recommendations to follow, in conjunction with local public health departments, include: level of community transmission; vaccination coverage among students, faculty, staff, and community; and local outbreaks. For example, each Bay Area school district’s determination regarding how to enforce its masking protocols should include as a factor its county’s recommendation whether individuals should return to indoor masking.[4]

The below merely serves as recommended guidance, except where specific measures are required as noted.

Masks: Students are required to mask indoors, regardless of vaccination status.
Adults are required to mask when sharing indoor space with students.[5] Persons exempt from masking due to medical conditions must wear an alternative, such as a face shield with a drape, as their condition permits.

Required Mask Protocols:

  • Local Educational Agencies (“LEAs”) must develop and implement protocols to provide masks to students who fail to bring one.
  • LEAs must develop and implement protocols to enforce mask requirements. The CDPH has already indicated it will revise its schools guidance regarding enforcement of mask requirements.[6]

Distancing: Distancing is no longer required when “other mitigation strategies” such as masking are implemented.

Quarantine Recommendations:

  • Required Case reporting: AB 86 and 17 Cal. Code of Regs Section 2500 requires districts to report positive cases to county public health department.[7]
  • Advise all employees and students to stay home when they have symptoms, and do not return until: 24 hours have passed since resolution of fever, other symptoms improved, and 10 days have passed (10-day period can be shortened with a negative test, or medical   documentation that the symptoms are not COVID-related).
  • Advise all employees and students to get tested when they have symptoms. (Note that per Cal/OSHA Regulations, employers are still required to make testing available at no cost to all employees who had a close contact with a positive case at work.)
  • Student quarantine – vaccinated: For student contact with a positive case where the exposed students is vaccinated, follow CDPH May 12 Fully Vaccinated People guidance, which allows vaccinated people to skip the quarantine and testing if         asymptomatic.[8]
  • Student quarantine – unvaccinated but masked: For student contact with a positive case where the exposed student is unvaccinated but both parties were masked during the close contact: Unvaccinated students may continue to attend school during the 10-day quarantine period if they are asymptomatic, continue to mask, get tested twice weekly, and quarantine from extracurricular activities, including sports.
  • Student quarantine – unvaccinated and unmasked: For student contact with a positive case where the unvaccinated student was not masked during the close contact: exposed students must quarantine for 10 days, or quarantine for 7 days with a negative test.

Other Required Protocols:

Safety Plan: LEAs receiving ESSER funds are required to adopt a Safety Plan and review it at least every six months for updates. It is recommended that LEAs post their safety plan on their website and at school sites.

Disability Accommodations: CDPH refers LEAs to CDC’s July 9 K-12 Schools Guidance, Section 2 “Additional Considerations for K-12 Schools.”[9]

Public Transportation: Although the July 12 CDPH guidance did not address school buses, in its June 24, 2021 Guidance for the Use of Face Coverings, CDPH stated that on public transit including buses, “masks are required for everyone, regardless of vaccination status.”[10]

Other Recommendations:

Vaccines: Vaccination is strongly recommended for all eligible teachers, staff, and students.

Ventilation: Should be optimized. See CDPH Guidance on Ventilation.[11]

Hand Hygiene: Teach and reinforce washing hands throughout the day, avoiding touching face, etc. Ensure adequate hygiene supplies.

Cleaning: Clean once a day, disinfect after a positive case.

Food service: Eat outdoors as much as feasible, and maximize physical distancing when eating indoors.

Visitors: Continue to limit nonessential visitors.

The CDPH will separately issue guidance covering childcare settings, and youth activities such as band and drama. CDPH will determine by November 1 whether to update mask requirements or recommendations, based upon evolving conditions.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2021 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html.

[2] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/K-12-Guidance-2021-22-School-Year.aspx.

[3]  https://twitter.com/CAPublicHealth/status/1414772859767910407.

[4]  As of this week, a majority of Bay Area counties recommend that all individuals mask indoors, regardless of vaccination status. https://sf.gov/news/bay-area-counties-recommend-masking-indoors-everyone-precaution-against-increased-circulation. American Academy of Pediatrics also recommends that everyone older than age 2 wears masks at school, regardless of vaccination status. https://services.aap.org/en/news-room/news-releases/aap/2021/american-academy-of-pediatrics-updates-recommendations-for-opening-schools-in-fall-2021/.

[5] Although employees are subject to the mandatory Cal/OSHA Covid-19 Emergency Temporary Standards (ETS), which generally allow confirmed vaccinated employees to forego masking while at work, the ETS defers to CDPH guidance regarding youth settings, and excludes indoor public settings. (See our June 25, 2021 Legal Update regarding Cal/OSHA Regulations; https://sclscal.org/legal-update-memo-no-12-2021cc-cal-osha-guidance-harmonized-with-other-state-laws-orders-and-regulations-ccd/.)

[6] Although the CDPH states that LEAs “should” also offer alternative instruction for students who refuse to wear a mask, be aware that per AB 130, LEAs are now required to offer independent study for the 2021-22 school year to all students who request it. (See our July 15, 2021 Legal Update regarding AB 130: https://sclscal.org/legal-update-memo-no-12-2021-education-budget-bill-ab-130-enacted-k-12/.)

[7] See our March 5 Legal Update regarding AB 86: https://sclscal.org/wp-content/uploads/2021/03/09-2021-AB-86-Californias-Final-Reopening-Plan-JH.pdf.

[8] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-            19/COVID-19-Public-Health-Recommendations-for-Fully-Vaccinated-People.aspx.

[9]  https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html#anchor_1625662037558.

[10] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx . The CDE also states that masks are required on school buses. See California Department of Education’s Stronger Together – Transportation rules, updated May 28, 2021 (https://www.cde.ca.gov/ls/he/hn/sandtschservtranspotation.asp ).

[11] https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/EHLB/IAQ/Pages/Airborne-Diseases.aspx.