The New York State Department of Health (NYSDOH) issued a supplemental guidance document and a FAQ to assist school districts in addressing issues relating to masking and testing protocols. The main takeaways from these two (2) documents for school districts are as follows:
Removal of Mask Mandates for Schools
The guidance document clarifies that the mask mandate is lifted in all areas of schools and school settings, including buses, cafeterias, before and after care programs in schools, when singing, when in the room with individuals playing wind instruments, and during extracurricular activities, including athletic contests. However, the NYSDOH has continued a mask mandate for any student, staff and teacher who returns to school during days six (6) through ten (10) of their isolation period. An individual who is required to wear a mask upon return may remove his/her mask when eating, drinking, singing, going outside, or playing a wind instrument, but the NYSDOH is advising that physical distancing of six (6) or more feet should be maintained to the extent possible in such situations.
In a mask optional setting, any unmasked individual who was within six (6) feet of an infected person will be considered in “close contact.” To that end, schools should notify staff or the parents/guardians of students whenever the individual was in close contact with an infected person (if using individual level contact tracing) or if the individual was in the same room for longer than fifteen (15) minutes with an infected person (if using group level contact tracing).
There is an emphasis on ensuring a “mask positive” environment, and school districts are encouraged to use their policies and practices, including DASA, to limit any stigmatization or bullying for individuals based upon their individual choices regarding mask use.
The NYSDOH made clear that local DOHs can make the decision to change masking protocols in schools should local conditions require more restrictions. The metrics that will be used for such decisions are the CDC Community Burden Framework. Local DOHs are “strongly encouraged” to implement universal masking mandates in any county that hits the “high community burden” threshold. The CDC Community Burden Framework is located here for your reference.
Testing in Schools
The NYSDOH is emphasizing surveillance testing as a strategy to avoid COVID-19 spread. The guidance document makes clear that 10 NYCRR 2.62, which addressed testing requirements and was renewed until May 29, 2022, is still in effect. Therefore, the screening of unvaccinated school staff on a weekly basis (unless they were diagnosed with and recovered from COVID-19 within the past 3 months) is still required. The revised testing and masking guidance integrates the approach of the “Test to Stay” protocol, which is why it is not referenced specifically in the revised guidance.
In addition to individuals who test positive for COVID-19, the NYSDOH guidance is clear that if individuals are symptomatic and are not tested, they must be excluded from school for at least five (5) days following the onset of symptoms and be fever-free for at least twenty-four (24) hours without the use of medication. After returning to school, they must wear a mask for days six (6) through ten (10) under the NYSDOH’s current isolation and quarantine guidelines.
The NYSDOH guidance is less clear with respect to a school district’s obligation to exclude an individual based upon exposure or potential exposure. Specifically, the guidance states that exposed individuals, regardless of vaccination status, may remain in school by appropriately wearing a well-fitting mask and undergoing recommended testing, as well as participate in school-based extracurricular activities and ride school buses. The guidance later clarifies that if a school district is aware of an exposed individual’s failure to comply with recommended testing and that individual is not vaccinated or is not up-to-date on the full vaccination schedule, the individual should remain at home for five (5) days after exposure. The guidance further clarifies that if an individual is asymptomatic and up-to-date on vaccinations, the person should be encouraged to complete the recommended testing, but is not required to be excluded from school, as long as they are masked. However, the NYDOH FAQ appears to contradict the guidance regarding school exclusion, stating that “[i]f schools become aware that individuals who should be masking and testing are not doing so, efforts should be made to educate those individuals and their parents/guardians,” but does not provide that those individuals must be excluded from school. Should you have any questions regarding whether you are required to exclude a staff member or student from school, please contact our office.
For those individuals who are medically unable to wear a mask when required, the NYSDOH guidance states that the decision on exclusion should be made on a case-by-case basis, considering risk of exposure, feasibility of frequent testing, whether they will be in a classroom with vulnerable individuals, their vaccination status, mitigation measures in the classroom, and circumstances surrounding the student’s ability to learn virtually.
Should you have any questions about masking and testing in schools, please contact any of the attorneys in our Education Law group.