By Marion Walsh, Esq.

While school districts will likely continue in-person learning this Fall, many school districts and private schools may mandate masks for both staff and students. As of Tuesday, July 27, 2021, the U.S. Centers for Disease Control (CDC) updated its Guidance for K-12 schools across the country. The CDC now recommends all staff, teachers and students, as well as school visitors, wear a mask in K-12 schools, regardless of vaccination status.

This new Guidance reverses recommendations from the CDC released in early July, which allowed those who are vaccinated in schools to refrain from wearing a mask indoors. Unfortunately, COVID-19 cases have increased since the CDC published its initial recommendations for schools, due the highly contagious Delta variant. The 7-day moving average of cases is at approximately 42,000 as of July 25, 2021, according to the CDC, up from about 13,000 in June 2021. The CDC continues to recommend that children should return to full-time, in-person learning in the Fall with proper prevention strategies.

Follow State and School District Guidelines

The new CDC recommendations are recommended but not binding on states, school districts or private schools (absent state mandates). COVID-19 Guidance is evolving and requirements for September will depend on rates of local transmission and mandates from states and from local school districts. The New York State Education Department has not yet developed guidelines for New York Schools for 2021-22. At least eight states bar schools from requiring masks.

For school meetings with adults, such as IEP meetings, many meetings will likely remain remote, and it is more than likely that visitors will have to wear masks in school. In areas with substantial and high transmission, the CDC also now recommends that fully vaccinated individuals wear a mask in public indoor settings to help prevent spread of the Delta variant. The CDC considers a county to have high transmission if there have been 100 or more cases of Covid-19 per 100,000 residents or a test positivity rate of 10% or higher in the past week. Parents should keep an eye out on local transmission rates. Currently, as of July 27, 2021, for example, New York’s Westchester County transmission rates are at 4.2%.

Thus, parents should keep old masks and add new masks to the school supply list. Legal challenges to mask-wearing for students or staff are not likely to be successful. If your child has difficulty wearing a mask, you may seek accommodations in their IEP or Section 504 plan (if they have one) or ask about remote or hybrid learning. If you have questions about COVID-19 mandates or services for your child, it’s best to reach out to an attorney experienced in education law.