Legal Update Memo No. 46-2020 – CDPH Issues Guidance on TK-6 In-Person Instruction Waiver (K-12)
Download pdf: 46-2020 – CDPH Issues Guidance on TK-6 In-Person Instruction Waiver with attachment (CDC)
As discussed in our Legal Update Memo No. 43-2020, on July 17, 2020, schools located in counties that are on the California Department of Public Health (“CDPH”) monitoring list may not provide in-person instruction until their County has been off the monitoring list for 14 calendar days. However, there is a process to obtain a waiver from the County Local Health Officer (“LHO”) to provide in-person instruction for schools with grades Transitional Kindergarten (“TK”) through Sixth grade.
On Monday August 3, 2020, CDPH issued a three-page guidance document (“Guidance”) detailing the waiver process for TK-6 schools to re-open for in-person instruction. The document is included with this Legal Update., 
An important clarification in the Guidance is the “…elementary school waiver is applicable only for grades TK-6, even if the grade configuration at the school includes additional grades.”
Additional key points from the Guidance:
- CDPH recommends that schools within jurisdictions with 14-day case rates more than two times the threshold to be on the County Monitoring List (>200 cases/100,000 population) should not be considered for a waiver to re-open in-person instruction.
- A district superintendent, private school principal/head of school, or executive director of a charter school can apply for a waiver from the LHO to open an elementary school for in-person instruction.
- Applications and all supporting documents must be submitted to the LHO at least 14 days prior to the desired reopening date.
- Prior to applying for the waiver, the applicant (or his/her staff) must (1) consult with labor, parent, and community organizations, and (2) publish elementary school reopening plans on the website of the local educational agency (or equivalent).
- As described in the CDPH/CalOSHA Guidance for Schools and School-Based Programs, elementary school reopening plans must address several topics related to health and safety, in a manner consistent with guidance from CDPH and the local health department.
- When applying for the waiver, the applicant must submit to the LHO a waiver application form, to be provided by the LHO. The application must include evidence of (1) consultation with labor, parent, and community organizations, and (2) publication of the elementary school reopening plans on the website of the local educational agency (or equivalent).
- The applicant must sign an attestation confirming the names and dates that the organizations were consulted. If school staff are not represented by a labor organization, then the applicant must describe the process by which it consulted with school staff.
- The applicant must confirm publication of the elementary school reopening plans on the website of the local educational agency (or equivalent).
- Following review, the LHO will consult with CDPH regarding the determination whether to grant or deny the waiver application. Consultation with CDPH is accomplished by submitting a notice pursuant to CDPH instructions.
- CDPH will acknowledge receipt of the notice and follow up if there are any questions or concerns. CDPH will provide technical assistance as requested.
- If the LHO has not received a further response within three business days of submission, the waiver application may be approved or denied consistent with CDPH instructions.
- LHOs may conditionally grant an application with limits on the number of elementary schools allowed to re-open or allow re-opening in phases to monitor for any impact on the community.
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.
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 To verify if your County is on the monitoring list: https://covid19.ca.gov/roadmap-counties/#track-data. Last visited August 4, 2020.
 The CDPH Guidance can also be found at: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/In-Person-Elementary-Waiver-Process.aspx. Last visited August 4, 2020.
 Please see the following link for an August 4, 2020, approximately 40 minute recorded webinar on the waiver process: https://www.youtube.com/watch?v=H-9TfUErzig&feature=youtu.be. Last visited August 4, 2020.
 This is a change in the position of CDPH, which had indicated in a July 20, 2020, webinar that middle school grades (7-8th) located at an elementary school could apply for the waiver.