As districts inch closer to the start of the 2020-2021 school year, they continue to receive more questions regarding face masks. This blog post will address the most recent questions we have received from clients relating to face masks.
- What does the Ohio Department of Health Director’s recent face mask order change for schools?
(Note: The answer to this question was updated on August 17, 2020 to reflect the most recent mask order specific to Ohio schools.)
As mentioned in Brian DeSantis’s August 17, 2020 Weekly Briefing, the Director of the Ohio Department of Health (ODH) signed a new order effective August 14, 2020 for Ohio schools. The new Order, which is controlling over the more general statewide mask mandate from July, requires “all students, faculty, and staff” in any child care setting, school building, or other location providing care or education to children in grades K-12 to wear a mask at all times when:
(1) In any indoor location, including classrooms, gymnasiums, offices, locker rooms, hallways, cafeterias and/or locker bays;
(2) Outdoors on school property and unable to consistently maintain a distance of 6 feet or more from individuals who are not members of their household;
(3) Waiting for a school bus outdoors and unable to maintain a distance of 6 feet or more from individuals who are not members of their household; and,
(4) Riding a school bus.
However, the Order contains eight specific exemptions from the mask mandate. A mask is not required when:
(1) The individual has a medical condition, mental health conditions, or a disability that contraindicates the wearing of a mask;
(2) The individual is communicating with or seeking to communicate with someone who is hearing impaired or has another disability, where an accommodation is appropriate or necessary;
(3) The individual is actively participating in outdoor recess or a physical activity where students are able to maintain a distance of 6 feet or more;
(4) The individual is seated and actively consuming food or beverage;
(5) Where students and staff can maintain distancing of at least 6 feet and removing the mask is necessary to instructional purposes (e.g., instruction in a foreign language or playing an instrument);
(6) Students are able to maintain a distance of 6 feet or more and a “mask break is deemed necessary by the educator supervising the educational setting;”
(7) The individual is alone in an enclosed space; or
(8) “When an established sincerely held religious requirement exists that does not permit” a mask.
Districts should discuss the specific exemptions and their application with their legal counsel.
Because this Order is controlling and effective over any conflicting provisions of the statewide mask mandate issued in July, school districts should review their mask policies to ensure they comply with this latest Order.
- Individuals have been carrying cards indicating that the Americans with Disabilities Act (ADA) prohibits mask mandates, or that the person carrying the card cannot be forced to wear a mask because of the ADA. Are these cards legitimate?
No. These “cards” are misleading at best, and they have been denounced by the federal government. On June 30, 2020 the U.S. Department of Justice (“DOJ”) issued a press release indicating that cards and documents bearing the DOJ Seal and claiming that individuals are exempt from face mask requirements are fraudulent.
While the ADA permits individuals with disabilities to seek reasonable accommodations, it does not provide a blanket exemption to individuals from wearing a mask in public. The purpose of the ADA is to prohibit discrimination on the basis of disability by public entities. The ADA further requires districts to provide a reasonable accommodation to a qualified individual with a disability unless doing so would cause undue hardship.
If a staff member cannot wear a mask for a disability-related reason, that staff member should request a reasonable accommodation by letting the district know that he or she needs one. Then, the district may request the staff member to provide medical documentation to help determine whether he or she has a disability and whether a reasonable accommodation can be provided.
Similarly, if a student cannot wear a mask due to a health or developmental reason, districts should provide the student with a reasonable accommodation. Such accommodations could include face shields, mask breaks, or different seating options. Accommodations must be determined on an individual basis. Districts may request the student and/or the parent(s)/guardian(s) to provide medical documentation of the condition that requires a need for an accommodation to help determine the appropriate accommodation.
Aside from ADA concerns, remember that the guidelines issued by ODH and ODE outline certain exceptions to staff and volunteer mask requirements. Similarly, students may be exempt from wearing a mask for health or developmental reasons. Districts should consider making a form available for individuals who believe they meet one of the mask exceptions. Such a form should ask the individual which exception might apply, and it should request appropriate documentation if needed. Please feel free to contact Pepple & Waggoner if you need such a form.
- Can districts prevent individuals from wearing masks depicting inappropriate images or statements?
Generally, yes. Face masks should comply with Board policies on dress and grooming. As such, masks that bear inappropriate statements or images as defined by your Board policy may be prohibited, just as you would prohibit a similar statement or image portrayed on a t-shirt or jacket. If an individual is prohibited from wearing their chosen mask and does not have a backup mask available, the district will need to provide that person with an alternative mask to wear. Furthermore, the district may take disciplinary action for inappropriate masks as outlined in your Student Code of Conduct, Board Policy or collective bargaining agreements.
Contributions to this blog post made by Taryn Weiss Derin, Esq.