Recap on recent guidance from CDPH, CDC

Association of California School Administrators

March 28, 2022

The following Client News Brief was prepared by attorneys at Lozano Smith.

The California Department of Public Health and the Centers for Disease Control and Prevention recently released new guidance, which includes changes to the legal requirements for face masks and new health and safety recommendations for Local Educational Agencies to consider.

On Feb. 25, 2022, the CDC released new guidance describing how the CDC now measures the impact of COVID-19 on local health and health care systems within each U.S. county. This new guidance, called “COVID-19 Community Levels,” assigns each U.S. county one of three tier levels (low, medium or high) and based on the assigned tier level, makes recommendations for individuals, households and communities designed to help prevent and mitigate the spread of COVID-19. One prevention and mitigation strategy of note in the CDC’s guidance is a recommendation for individuals to wear a face mask indoors in public K-12 schools regardless of vaccination status when the COVID-19 community level is “high.” The new guidance recommends individuals in “low” or “medium” COVID-19 community level tiers wear face masks if they develop symptoms, have a positive test, were exposed to someone with COVID-19, are in a household or in social contact with someone at high risk for severe disease, or as directed by a health care provider.

While CDC guidance is not binding legal authority, the new CDC recommendations may help establish a standard of care for public agencies. The CDC can and does, however, issue orders which are binding, such as its Jan. 29, 2021, order requiring masks for individuals using public transportation. Previously, the CDPH and the California Department of Education interpreted that order as requiring the wearing of face masks by individuals on California school buses. It is therefore notable that the CDC released a statement stating that, effective Feb. 25, 2022, it would no longer be enforcing the Jan. 29, 2021 masking order for buses operated by public school systems.

In light of these changes to the CDC’s guidance and enforcement decisions, on Feb. 28, 2022, the CDPH released an updated Guidance for the Use of Face Masks, which contains an announcement that face masks are only legally required for all individuals indoors in K-12 schools through March 11, 2022. The new CDPH guidance also states that face masks remain a requirement for individuals traveling on public transit, such as when riding buses, indefinitely. However, the CDPH clarified on March 12, 2022, that a school bus is considered a “school setting” and is therefore subject to K-12 school guidance.

Also on Feb. 28, 2022, the governor signed Executive Order N-5-22, modifying Cal/OSHA’s Emergency Temporary Standards to remove the legal requirement for unvaccinated employees to be masked when indoors or in vehicles with other individuals. The ETS now only requires employees to wear face masks pursuant to CDPH orders. In other words, the governor’s Executive Order aligns the legal requirements for school employees with that for students in the CDPH’s revised Guidance for the Use of Face Masks, which no longer requires that face masks be worn indoors at K-12 schools after March 11, 2022.

Further, on March 9, 2022, the CDPH released updated K-12 school guidance to align with the end of the face mask mandate but requiring that LEAs develop protocols to provide face coverings to students who desire to use one but do not bring one to school. As a result, face masks are only strongly recommended, not legally required, indoors in K-12 schools and on school buses.

The recent change in CDC and CDPH guidance appears to be an exercise in scaling down mitigation strategies.

Takeaways

Given these changes, LEAs should review past agreements they have entered into with labor partners to determine if those agreements will continue to separately require face masks be worn indoors at K-12 schools beyond March 11, 2022.

Throughout the pandemic, the CDC has repeatedly stated that authorized COVID-19 vaccines are highly protective against severe disease, hospitalizations and deaths, whereas other mitigation strategies can be scaled up or down depending on what is feasible, practical and legal in evolving local situations. The recent change in CDC and CDPH guidance appears to be an exercise in scaling down mitigation strategies while Omicron variant case rates and hospitalizations decline. However, public agencies will want to be mindful of the fact that the CDPH still “strongly recommends” that individuals continue to wear face masks indoors in K-12 schools, emphasizing that face masks remain an effective and simple safety mitigation measure to prevent transmission of COVID-19. The CDPH has also released guidance for LEAs to consider in deciding whether or not to maintain or establish a face mask mandate separate from a CDPH order.

LEAs should, in consultation with insurance counsel, general legal counsel, labor partners, and other stakeholders, consider updates to their COVID-19 Safety Plans in light of the changes.