School Update: Vaccines and Masks By Wil Donio, Esq., Amy Houck Elco, Esq., Kasi Gifford, Esq. August 25, 2021 2:54 pm To Our School Board Community: As we anticipate the return to full in person instruction for our students, we are again seeing increased Executive Orders, and last minute guidance. On August 20, 2021 the New Jersey Department of Education updated the “Road Forward” guidance and on August 23, 2021, Governor Murphy announced Executive Order 253 (“EO 253”), which mandates full COVID-19 vaccination or weekly testing for all school staff. We’ve tried to parse out what it means for you: EO 253 The Basics: What does EO 253 require? EO 253 requires that all school “covered workers” either provide adequate proof to the school that they have been fully vaccinated OR submit to COVID-19 testing at minimum one to two times weekly. This requirement shall take effect on October 18, 2021, at which time any covered worker that has not provided adequate proof that they are fully vaccinated is deemed unvaccinated and must submit to a minimum of weekly or twice weekly testing on an ongoing basis until fully vaccinated. Who is a “Covered Worker” in a School? EO 253 defines “Covered Workers” as both full and part-time school employees, including, BUT NOT LIMITED TO, administrators, teachers, educational support professionals, individuals providing food, custodial, and administrative support services, substitute teachers, whether employed directly by a school or otherwise contracted (such as bus drivers), contractors, providers, and any other individuals performing work in schools whose job duties require them to make regular visits to schools, including volunteers. As noted expressly in the EO 253 the list is not an exhaustive list of everyone who might be considered a “Covered Worker.” However, covered workers do not include individuals who visit the school only to provide one-time or limited duration repairs, services, or construction. What is the Vaccination Proof Needed to Submit to Employers? The Employee must provide: a. The CDC COVID-19 Vaccination Card issued to the vaccine recipient by the vaccination site, or an electronic or physical copy of the same; b. Official record from the New Jersey Immunization Information System (NJIIS) or other State immunization registry; c. A record from a health care provider’s portal/medical record system on official letterhead signed by a licensed physician, nurse practitioner, physician’s assistant, registered nurse or pharmacist; d. A military immunization or health record from the United States Armed Forces; or e. Docket mobile phone application record or any state specific application that produces a digital health record. When is an Employee Considered Fully Vaccinated? EO 253 defines “fully vaccinated” for COVID-19 two weeks or more after an employee receives the second dose in a two-dose COVID-19 vaccine series or two weeks or more after they receive a single-dose COVID-19 vaccine. The COVID-19 vaccine must be one that is currently authorized for emergency use by the FDA or the WHO, or that are approved for use by the same. What is the Screening Testing Required for Covered Employees? EO 253 specifies, that the worker may choose either antigen or molecular tests that have EUA by the U.S. Food and Drug Administration (“FDA”) or are operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services. What if Schools Provide On-Site Access to Covid-19 Tests? If a school choses to provide on-site access to COVID-19 tests, the covered setting may similarly elect to administer or provide access to either an antigen or molecular test. If Employees are Not Working On-Site a Particular Week, are They Required to be Tested? No, if the covered worker is not working on-site in the school during a week where testing would otherwise be required, the school’s policy need not require the worker to submit to testing for that week. This requirement shall not supplant any requirement imposed by the school regarding diagnostic testing of symptomatic workers or screening testing of vaccinated workers. Private and Parochial Schools: Does EO 253 Apply to Private and Parochial Schools? Yes, EO 253 applies to all private and parochial preschool programs, and elementary and secondary schools. Does EO 253 Apply to Partner Private Schools for a School’s Preschool Grant? Yes, EO 253 applies to all private and parochial preschool programs. Exemptions: Will there be an exemption from EO 253? No. However, it is expected that even if a Covered Worker were to have a religious or medical reason for not receiving the vaccine, the reasonable accommodation would be for the Covered Worker to get tested on a weekly basis. This reasonable accommodation is already embedded in EO253. Screening Testing Information: Who Will Pay for the Testing? EO 253 does not appear to require schools to pay for testing. It is important to note that if schools are required to pay for testing, absent funding, this could be considered an unfunded mandate. The Governor in his August 23, 2021 press conference and EO 253, in the “whereas” clause allude to the fact that school districts have access to multiple sources of funding to address costs associated with worker vaccination efforts and testing, including three rounds of federal Elementary and Secondary School Emergency Relief funds and Emergency Assistance for Nonpublic Schools within the Governor’s Emergency Education Relief funds. The Governor stated that the NJDOH will offer a free program for school districts to conduct testing, but no further guidance has been issued at this time. Employee Vaccination and Testing Data: What is the School’s Responsibilities to Collect Vaccination and Testing Information? As a School collecting vaccination information from covered workers must comport with all federal and State laws, including but not limited to the Americans with Disabilities Act, that regulate the collection and storage of that information. It is important to establish clear procedures for collecting this data. What do you do with test results? Schools must have a policy for tracking test results from testing required by EO 253 and schools must report results to local public health departments. Will Schools be required to track booster shots for eligible individuals? It remains to be seen whether booster shots will be necessary in order to continue to consider a person fully vaccinated. Who is required to monitor vaccinations and testing? Monitoring the vaccinations and testing should be done by the school nurse/school doctor with administrative oversight. Schools should talk to their medical inspector a/k/a school doctor to incorporate standing orders. Other Important Information To Note: Can A School Put More Strict Policies in Place? Yes. Nothing in EO 253 prevents a covered setting from instituting a vaccination or testing policy that includes additional or stricter requirements, so long as such policy comports with the minimum requirements of this Order. A covered setting may also maintain a policy that requires more frequent testing of covered workers. Are Schools Required to Have a Policy? Yes. Schools are required to have a policy. You should check with your policy service provider or your school solicitor for assistance. Masks: Did EO 253 Clarify the Mask Exceptions regarding EO 251? Yes it did! EO 253 clarified that the policy of public, private, and parochial preschool programs, and elementary and secondary schools, including charter and renaissance schools, regarding mandatory mask wearing in the indoor portion of school premises, as outlined in Executive Order No. 251 (2021), MUST require individuals seeking a medical exemption from mask wearing under Paragraphs 1(a) – (c) of that Order to produce written documentation from a medical professional to support the exemption. What does this Clarification Mean for Mask Exceptions? The clarification means that self-attestations and parental attestations are not sufficient for this purpose. Simply put no “parent notes” or “employee notes.” What did the Road Forward Update Regarding Masks? On August 20, 2021 the Road Forward Health and Safety Guidance for the 2021-2022 school year was updated to revise close contact definitions. Specifically, in the K–12 indoor classroom setting, the close contact definition excludes students who were within 3 to 6 feet of an infected student (laboratory-confirmed or a clinically compatible illness) where both the infected student and the exposed student(s) correctly and consistently wore well-fitting masks the entire time. Who does the Road Forward Close Contact Mask Exception Apply to? The exception only applies to students. It does not apply to teachers, staff, or other adults in the indoor classroom setting. Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests. In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders. Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance. As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks. Click here to keep up with the latest news from Cooper Levenson AMY HOUCK ELCO, COOPER LEVENSON, CORONAVIRUS, COVID-19, EDUCATION LAW, KASI GIFFORD, MASK MANDATES, NEW JERSEY, VACCINATIONS, WIL DONIO FACEBOOK GOOGLE+ TWITTER LINKEDIN PINTEREST PREVIOUS Is Florida now a Community Property State? 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