We have written repeatedly in these pages about statewide masking and employee vaccination mandates for Connecticut schools (both public and private) via Executive Orders from Governor Ned Lamont.  While on February 15, 2022, the Governor’s emergency powers that led to these mandates will expire,  it now appears based on comments from the Governor Monday that  Governor Lamont 1) will not be renewing the statewide school employee vaccination mandate, and 2) will be delegating the decision on the statewide school masking mandate to the Connecticut Department of Education (SDE) and Public Health (DPH), with these departments currently planning on lifting the statewide mandate on February 28, 2022.  We will follow this breaking story as more information becomes available, but in the meantime, here is my take on the state of play as schools suddenly acquire control over these hot button issues.  In short, Connecticut schools soon will have considerable discretion to make the decisions that they deem appropriate on behalf of their students, staff and broader school communities.          

So, what can a board of education (or private or charter school) do when the statewide school masking requirement is no longer in effect (and who makes the decision)?  In short, whatever the local or regional board of education or school governing body wants.  School districts that have previously adopted masking and/or staff vaccination or testing policies would have the power to repeal such policies.  Indeed, school districts (and private and charter schools) that have simply been following (or incorporating) the mandates of the masking and vaccination Executive Orders can simply elect to no longer abide by such mandates (or take no action to re-impose such mandates on the local level), since they will have expired.

Could a school decide to maintain/impose a masking requirement for its students and/or employees (if it wishes)? Yes.  Attempts to challenge the mask mandate on the statewide basis (with various assertions of alleged civil rights and constitutional violations from the imposition of masks) have failed in the courts.  Regardless of what one feels about mask mandates, there is at least a “rational basis” for a school (in consultation with local health authorities) to determine that a mask mandate should remain in place, and the basic powers of schools to care for, maintain and operate their facilities (and provide for a safe setting) would include the power for a school to impose such a mandate.  One caveat: With respect to unionized employees, there may be a claim that a school (as employer) has an obligation to bargain with the union over at least the impact of a decision to maintain/impose such a mandate in the absence of a statewide requirement.      

Could a school decide to not impose a masking requirement (if it wishes)?  Yes.   A board of education (or private, or charter) school could very well decide that since DPH (which is obviously charged with important decision regarding public health) and SDE have concluded that masks are no longer required in schools under current public health conditions, then there is no reason for it to mandate them. On this point, while we have written in the past about negligence and liability issues involving the schools (Liability for field trips: Munn v. Hotchkiss and ticks, Costa v. Plainville and basketball, and are there really any new obligations for public schools?: Pullman & Comley (pullcom.com) it is of course possible that a parent of a student who contracts COVID-19 may pursue legal action against a school for not having a mask mandate. However, such litigation is unlikely to succeed, since 1) it will be difficult for the parent to prove that the student contracted COVID-19 in school, and 2) the lifting of the statewide school mask mandate by the DPH would seem to indicate that a school’s “duty of care” does NOT require the imposition of a local mask mandate.  As we have written in the past, public schools would likely also be able to defeat such a lawsuit by asserting the legal defense of “governmental immunity” which grants public officials considerable discretion to make policy decisions without fear of legal liability.             

Could a school maintain a vaccine requirement on its own even if the statewide mandate disappears? As we have also repeatedly written in these pages, both courts and various agencies have repeatedly found that employers (including schools) have the ability to impose a COVID-19 vaccination mandate on their employees, provided that such a mandate includes religious and disability-based exemptions.  As you may guess, such a decision to maintain a mandate may be controversial, and with respect to unionized employees, there may be a claim that a school (as the employer) has an obligation to bargain with the union over at least the impact of a decision to maintain such a mandate in the absence of a statewide requirement.      

So, what does this all mean?  Please ignore the white noise and hot air.  Connecticut boards of education (and private and charter schools) will have broad leeway in deciding  whether or not to impose or maintain a local mask mandate after the expiration of the statewide mandate.  As long as the determination is made via some degree of reasoned decision-making (consistent with public health and pedagogical/educational considerations), the board of education’s decision will likely pass legal muster.  Connecticut boards of education, private and charter schools should make this decision based upon their assessment of what is best for its students, staff and community members (and need not be swayed by those from all ends of the political spectrum threatening litigation).  If a school decides to not impose a mask mandate after the expiration of the statewide mandate, it should make sure to accommodate those who wish to continue to wear a mask and ensure that any persons are not subject to bullying or harassment due to the decisions that they make on mask wearing.               

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