On August 19, 2021, the Connecticut State Department of Education (SDE) issued its much awaited “Adapt Advance Achieve” guidance on COVID-19 mitigation strategies for Connecticut’s schools for the fall of 2021. This year’s “Adapt Advance Achieve” guidance is not as rigid as its 2020-2021 predecessor. Indeed, the terms “recommend,” and “recommendation” are mentioned throughout the document, as if to let schools know that they have some discretion in adopting these strategies. In addition, several of the listed strategies (e.g., three feet instead of six feet separation, loosened quarantining for the vaccinated) are less strict than last year’s requirements. That being said, any “recommendations” may create a basic standard of care that schools may be wise to follow (to reduce potential risks/liability).
While the SDE guidance notes that the degree of layering of the various recommended mitigation strategies may vary on a school and district wide basis, it is crystal clear that the universal use of masks inside school buildings is required. However, less clear is the discretion that schools may have with respect to the permissible exemptions to mask wearing.
As we previously pointed out,, the Governor issued Executive Order #13Awith respect to the general population and mask mandates; this Order indicated that the use of masks would not be required by anyone “for whom doing so would be contrary to his or her health or safety because of a medical condition, behavioral condition, or disability.” Executive Order #13A then provided that a person who declines to wear a mask because of a medical condition, behavioral condition, or disability would be exempt from mask requirements if such person provides written documentation that the person is qualified for the exemption from certain listed medical providers and professionals, with the Order then specifying that this documentation did not specifically have to name or describe the condition that qualifies a person for the exemption.
The new August 19, 2021 SDE guidance states that “individual school districts should develop and continuously review, in consultation with their legal counsel and district medical advisors, specific policies regarding what limited exemptions to the wearing of face coverings by students or staff will be considered allowable while inside the school building.” This pronouncement would appear to give some leeway to the schools. In the next sentences, however, the SDE guidance states that the need for medical exemptions for mask wearing is “rare” and “generally limited to individuals suffering from severe chronic obstructive pulmonary disease (COPD) such as might be seen with cystic fibrosis, severe emphysema, heart failure, or significant facial burns that would cause extreme pain or interfere with the healing of a skin graft.” Furthermore, the SDE states that “mild or intermittent respiratory or other common conditions such as asthma, cardiovascular diseases, kidney disease, or other similar conditions are generally not considered contraindications to the wearing of loose-fitting face coverings.” The SDE guidance contains exemptions for 1) special education students and 2) if a school so chooses, vaccinated teachers at times “during active instruction at the front of the classroom.”
The SDE is basically re-issuing its 2020-2021 guidance for medical exceptions, which on its face is clearly tighter than the medical exception to the mask mandate contained in Executive Order 13A, but at the same time, the SDE guidance refers to the ability of the district to review with their legal counsel and medical advisors, policies on exemptions for masks. The provision of leeway appears to be inconsistent with the restrictive statements on the medical exemption. Is the listing of limitations on the medical exemption a “recommendation” or binding guidance?
Making it more complicated is the following conclusory paragraph in the SDE guidance:
The need for layering specific prevention strategies will vary, and schools may feel comfortable implementing fewer of these strategies, in consultation with their local health departments, based on community transmission levels, vaccination coverage, and other discussions regarding risk-tolerance, costs, and benefits. As mentioned previously, pursuant to existing Executive Orders and Commissioners’ Orders, the universal use of masks inside school buildings and childcare settings is required, regardless of vaccination status. However, if school administrators and their local health partners are considering whether to eliminate any of the other prevention strategies listed above, it is recommended that they be removed one at a time, with close monitoring of students, teachers, and other staff (with adequate testing through the school or community) for any outbreaks or increases in COVID-19 cases in their schools or communities in the time following the removal of any mitigation strategy.
The SDE guidance refers to the broad mask mandate via 1) Executive Order 13A and 2) the Department of Public Health’s prior order requiring masks inside of public and private school buildings. However, as noted above, this prior general mandate has a more liberal medical exemption than what is referenced in the SDE guidance. Can schools exercise their discretion to eliminate anything that is in excess of the general mask mandate? We are awaiting further SDE guidance on this issue.
Finally, the SDE guidance’s “recommendation” on screening testing for unvaccinated staff has largely been superseded by Executive Order #13D from Governor Lamont that mandates that 1) new staff be vaccinated, subject to disability and religious exemptions and 2) after September 27, 2021, all school staff be vaccinated (subject to the same exemptions), and if not vaccinated subject to weekly COVID-19 testing. We will be posting on this new Executive Order in the coming days.
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