Schools Grapple with Array of Mask and Vaccine Laws

By Dinah Wisenberg Brin August 30, 2021
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Teacher wearing mask at school

​Changing public health guidelines and disputes over masking policies may leave school districts and boards wondering what, as employers, they should do.

Disagreements between school boards, parents, teachers and government officials have pitted those demanding freedom from mask requirements against those urging mandatory coverings as a public health measure to contain the coronavirus. Notably, a Florida court recently struck down the state's ban on mask mandates in schools.

In addition to considering what's best for students, school districts also must weigh their roles as employers when developing mask policies, vaccine requirements and other COVID-19 safety protocols.

Understand the Applicable Laws

"In some states, leaders are mandating school employees wear masks and get vaccinated, while in other states, that may be prohibited," said Amy Campbell, SHRM-CP, director of HR services for the Texas Association of School Boards (TASB).

In California, for example, school staff must show proof of vaccination or get tested regularly for COVID-19.

"In states where mandates may not be allowed, school leaders can encourage employees to wear masks and take other safety precautions to mitigate the spread of COVID-19, particularly given how easily the delta variant spreads, even among vaccinated individuals," Campbell said.

She recommended that school leaders communicate to employees how their mitigation efforts support keeping schools open, which she said is critical to addressing learning loss.

"Of course, with the law varying from jurisdiction to jurisdiction, the first step is to know and follow the law," said Joy Baskin, TASB's director of legal services and chair of the National School Boards Association's Council of School Attorneys, who noted that in Texas and Florida, some school districts have taken an extra step by challenging governors' orders to bar schools from mandating masks.

"Many districts are facing rapid community spread of the delta variant," Baskin said. "At the same time, to address learning loss, districts hope to make in-person learning safe."

As a result, districts are using all possible safety precautions, including universal mask wearing, contact tracing, self-isolation, and promotion of vaccination and testing.

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Collaboration Is Critical

Involving teachers' labor organizations in discussions is an important step for gaining buy-in and garnering support for COVID-19 safety strategies, Campbell noted.

"It's also a good way to learn what staff want and need," she said. Teacher groups can survey their members and provide guidance to school leaders on what employees are concerned about, what's working particularly well and what they need to do their jobs effectively under the circumstances.

"When school leaders work in tandem with teacher groups to support the safe reopening of schools, students will benefit," Campbell added.

Adam Fiss, an attorney with Littler in San Jose, Calif., said school boards in unionized jurisdictions may need to negotiate mandates with teachers' unions unless the law gives the district the right to impose a decision. Even if the district has such a right, it may need to negotiate the "effects" of the decision, such as testing and vaccination logistics, potential exemptions, and the consequences for someone who refuses to comply, he said.

School districts should ensure they understand their employees', students' and communities' feelings on masking, Fiss said. It might not change the rules they put in place, he noted, "but it will help with communication and messaging."

In some jurisdictions, most employees, students and families will support wearing face coverings, while in others, school officials may face pushback if they impose a mask requirement.

California's Culver City Unified School District may have been the first in the U.S. to mandate vaccination for students age 12 and older. The district said it had support from teachers, parents and students, Fiss noted.

Because of the fluidity of the pandemic and inconsistencies in policies among jurisdictions—a county's policy may be at odds with the state's position, for example—Fiss suggested that school boards look at all applicable regulations, so they have an understanding of the legal landscape they're dealing with and remain in compliance.

Requirements are changing day to day and hour to hour, so districts should stay up-to-date, he noted. In certain places, he said, school boards or superintendents will have to make decisions that balance what they think is right from a health and safety standpoint and what they're being told to do.

Legal Challenges

Masking and vaccination rules vary across the country. In Florida, several districts have adopted strict mask policies despite warnings from state officials that school systems with mandates could lose funding. Parents filed suit in a Florida county court challenging an order from Florida's governor designed to bar school mask mandates. The court ruled on Aug. 27 that the state did not have the authority to prohibit schools from requiring masks. 

Numerous Texas districts also reportedly defied the governor's ban on government agency mask mandates, with one smaller school district writing masks into its dress code. In addition, a disabilities rights group has filed a lawsuit in federal court on behalf of Texas students with serious health conditions, contending the ban on mask mandates violates the Americans with Disabilities Act.

In late August, the Texas Supreme Court upheld temporary restraining orders against the governor's ban on school mask mandates, and the Texas Education Agency halted enforcement of the ban, citing numerous legal challenges.

Baskin noted that parents or employees with special health needs may have a right under federal law to seek a reasonable accommodation for their health condition or disability that allows them to continue with school or work in a safe manner.

More broadly, districts may be able to garner teacher support by focusing on the need to keep students healthy and in the classroom.

"Educators want students to be in school and to stay safe and healthy, so appealing to their role in that happening may be an effective tactic even if mandates aren't a viable option," Campbell said. "The Centers for Disease Control and local health authority guidance are helpful to reference, as they give practical guidance for opening schools and staying open safely, but in many cases local and state rules are limiting the mitigation tools available to schools."

Dinah Wisenberg Brin is a freelance writer and reporter based in Philadelphia, Pa.

[Want to learn more about COVID-19 and workplace safety? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

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