School’s Back For….We’ll See

By Brandon Vogel

September 1, 2020

School’s Back For….We’ll See


By Brandon Vogel

The days of dropping off your child’s forgotten lunch at school or volunteering in the classroom are over…for now.

While New York is down from its record high number of COVID-19 infections in mid-April, the state still records hundreds of new cases a day. The number is expected to rise as schools reopen this month.

Jay Worona, deputy executive director and general counsel of the New York State School Boards Association, said on today’s CLE webinar, “Reopening Schools: Legal Issues and Concerns,” that parents are “living in the most difficult time with respect to making decisions about what’s the safest way for your children to become educated, whether you continue to live in your home and be educated there or go to school. Everyone has their heart in their throat.”

A deadly serious business

Reopening our schools is a deadly serious business, said facilitator Donald E. Budmen (Ferrara Fiorenza). “We have been flooded with thousands of pages of law and guidance, it’s not an exaggeration. It’s come from the Governor’s Executive Orders, the Board of Regents, the New York State Education Department, the New York State Health Department, the Centers for Disease Control and Prevention, virtually anyone other than my Aunt Sally.”

Budmen explained that New York got a handle on the virus by “shutting it all down.” Reopening is “undoubtedly a risky business.”

“We just want to make sure that as we reopen schools, we do it in the best way possible,” he said. “We have a duty to protect our students and staff, no question about that. There are standards that define that duty: those standards are found in those thousands of pages of laws and guidance. If we don’t live up to those standards and someone is injured as a result, that’s the very definition of negligence and we are liable.”

Lawrence J. Tenenbaum (Jaspan Schlesinger) agreed that schools should follow the guidance. “It will go a long way towards minimizing risk and minimizing the spread and rate of transmission and maintaining a safer work and learning environment.”

Examples of ways to reduce transmission include properly screening students and staff, keeping students six feet apart, using face coverings and thoroughly washing hands.

Beth A. Bourassa (Whiteman Osterman & Hanna) clarified that the exact temperature for individuals should not be maintained but recorded more generally such as “pass/fail” or “cleared/uncleared.” Records should be maintained confidentially and not placed in personnel files.

Students and staff are encouraged to stay home if they are not feeling well. “This is the time to be sensitive to the fact that you may be carrying a virus and you don’t want to spread it to others,” said Tenenbaum.

Mask up

Can a student refuse to wear a mask?

Tenenbaum said that students cannot refuse to wear a mask. “A school rule has to be observed. If the rule in the school is to wear a mask, then the student has to wear a mask and they’re not free to decide not to.”

He added that if students refuse, they are subject to student disciplinary proceedings.

Only students who cannot medically tolerate a mask, can refuse, but they must adhere to social distance guidelines, according to Tenenbaum. Similarly, masks are not required in a classroom if students are socially distant, but they are strongly recommended.

Bourassa noted that some students, particularly those on the autism spectrum, have been medically excused. “Those exemptions have been granted as they must be.”

Likewise, staff cannot refuse to wear a mask unless medically excused. “Staff have to follow the directives. If there’s a case of staff who are not medically excused failing to comply with the requirement, that would be treated, I believe, as a case of insubordination,” Bourassa said.

Some students might be granted medical exemptions for psychological reasons, but it cannot simply be for discomfort. It must rise to the level of an inability to wear the mask and function at school or work.

“Whether it is physical, medical or mental health, if it is appropriately documented by a health care provider, I think that’s an accommodation that would need to be granted and certainly not subjecting the child to disciplinary actions,” Bourassa said. “The child in that event is not refusing a directive to wear a mask. The child is exempt from that directive.”

Teachers, she said, have a level of anxiety almost three times that of other professionals. School districts may not be able to accommodate all requests for remote learning and remote work, she said.

“My advice to school districts when they’ve had more requests for remote instruction than they can possibly grant is to sort of triage those requests,” she said. “To me, the top priority goes to that group of individuals who themselves have a physical condition that is on the CDC list of conditions that cause higher risk or possibly a mental health condition that is appropriately documented because those are the individuals who are legally entitled to accommodation. The second priority are employees who live with someone who falls into that category of being at higher risk. Lowest priority will go to those who are uncomfortable or a bit anxious because that could be everybody.”

Bourassa also discussed how school districts can handle speech therapy where facial recognition is crucial. “It is essential for the student and therapist to see each other’s faces.” Clear masks can assist.

Physical therapy simply cannot be done with social distancing, she said. For those types of considerations, she would recommend different PPE options, such as a face shield or gloves or hospital gowns. She noted that a face shield is considered a supplement, not a replacement, for a mask.

Choral and band activities now require a distance of 12 feet apart, as well as physical education activities.

Inside schools
Visitors should wear masks and complete questionnaires before arriving at school.

“I think it’s going to be critical for schools to minimize the number of visitors that are not allowed in the building at all, including parents. Common practices are going to be curtailed,” Bourassa said.

For visitors who are allowed, it is going to be important to contain their movements inside the building, she said. She added that contact tracing is going to be critical in the event of a positive case. The local Department of Health will work in close consultation with the school district.

Tenenbaum said that ideally schools will have two rooms set aside for health issues: one for routine matters such as administering medications or dealing with cuts and scrapes; and another for sick kids exhibiting COVID symptoms.

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