Client Alert: Masks Are Still Required On School Property

On Friday, June 4, 2021, New York State Commissioner of Health Dr. Howard Zucker wrote to the Centers for Disease Control (“CDC”) and advised that, unless recommended to do otherwise, as of Monday, June 7, 2021, New York plans to modify guidance relative to wearing masks on school grounds. The letter follows Governor Cuomo’s June 2, 2021, press conference wherein “[Governor] Cuomo suggested he’d favor relaxing the mandate that students wear masks even outside. Current CDC guidance says schools should ensure “universal and correct use of masks and physical distancing” to offer in-person instruction. The State has generally been following CDC guidelines when it comes to mask and distancing rules, Cuomo said during a press conference in New York City. “It’s very rare that we differ with the CDC,” he said. “I have raised before that the mask mandate outside for students seems a little extreme to me and we’re talking to the CDC about it.”

Unfortunately, the June 4th letter was reported by the media and seems to have been misinterpreted that effective June 7, 2021, masks are no longer needed on school property. That is not a correct interpretation. Notably, the June 4th letter states only that the State “intends” to modify the rules but is seeking input from the CDC prior to doing so.

Unless or until written guidance or an Executive Order is issued relative to a change in requirements for mask-wearing on school property, the status quo remains: all individuals, regardless of vaccination status, must wear a mask on school property. Thus, on Monday morning an individual’s failure to wear a mask can constitute a violation of school rules and insubordination. This may be addressed as a violation of the Code of Conduct for students and visitors, or by disciplinary action for an employee.

The New York State School Boards Association (“NYSSBA”) has contacted the Governor’s Office and requested information relative to when school districts and BOCES may expect the implementation of a formal change in the State’s position. NYSSBA has been advised the June 4th letter should not be read as a reversal in the rule obligating individuals to wear a mask on school property. In response, NYSSBA has stressed the untenable position in which school districts will be placed in the event parents and/or students read the June 4th letter as support for the position that no mask is required on school property. We understand the Governor’s Office is aware of this concern, and the need for clarity.

Our recommendation is that school districts and BOCES notify your community members that the rules are still in place to avoid confusion tomorrow morning. We suggest that you issue “Robo calls”, email alerts and post the message below (or one like it) on your district website:

Dear community members: At this time, this communication is written to clarify that there has not been any official legal change in the mask mandate from the New York State Education Department, New York State Department of Health or Governor Cuomo. The June 4th letter by Health Commissioner Zucker reported by the media on Friday was written to the CDC to determine if the CDC has any objection to relaxing its mask mandate. However, unless and until written guidance or an Executive Order is issued by the State, all students, staff and visitors must wear masks while on school property. We recognize that the temperature is going to rise this week and we shall adjust the physical education curriculum and recess for students accordingly.

If we receive direction from the State that changes the mask wearing requirements at school, we will promptly communicate the change to our staff, students and parents.

Thank you for your continued patience with this difficult school year. We are almost to the end of the school year with fifteen days remaining.

We also recommend that you be prepared with an extra supply of masks for your school bus drivers and at your school entrances on Monday morning as you will likely have many people attempt to come to school without a mask. Your district has an obligation to furnish these individuals with a mask.

Our office will notify our school districts and BOCES clients when an official change in the mask mandate is released by the State.