California Department of Public Health Issues Comprehensive Guidance Governing Opening and Reopening of K-12 Schools

01.19.2021

On January 14, 2021, the California Department of Public Health (“CDPH”) issued the Covid-19 and Reopening In-Person Instruction Framework and Public Health Guidance for K-12 Schools in California, 2020-2021 School Year (“CDPH Framework/Guidance”).  This is a significant document, which supersedes prior CDPH and Cal/OSHA school reopening guidance (except the CDPH Cohorting Guidance originally issued in August 2020), and reworks rules governing school reopening for all public, charter and private schools in California.

Most notably, the CDPH Framework/Guidance significantly loosens reopening requirements for schools in grades K-6.  This and other topics, including new reporting requirements for “open” and “reopened” schools, and new face covering requirements, are addressed below.

New Reopening Requirements and New Reporting Requirements

CDPH has adopted new reopening requirements.  Additionally, all schools are subject to new reporting requirements, which vary based on whether the school is “open” or is eligible to now “reopen.”

Which Schools Can Now Reopen?

For Grades 7-12, the rules have not changed.  Schools serving these grades may reopen only if they are located in counties in the Red, Orange or Yellow Tiers under the State’s Blueprint for a Safer Economy framework.

For Grades K-6, schools may now open, even if in the Purple Tier, if the adjusted Coronavirus infection rate for the county has been at or below 25 per 100,000 population per day for at least 5 consecutive days.  The prior K-6 waiver process is no longer in effect, though any schools previously granted waivers (and who actually opened under that waiver) may continue to operate under that waiver, even if they would not be allowed to “open” under current rules.

Which Schools Are Already “Open”?

A school is deemed to already be “open” only if it offered general in-person instruction to all students in at least one grade for at least part of the schoolweek, as opposed to offering in-person only for a particular service or student population (e.g. for occupational therapy, or for students with disabilities).  Conversely, “if only some students were being served in-person …(e.g., only students with disabilities) and all students in at least one grade did not have the option to return in-person as described above, the school has not ‘opened’ or ‘reopened.’”

Specifically, schools are “open” if all of the following apply:

1. They offer in-person instruction at a school site;
2. All students in at least one grade had the option to return for in-person instruction;
3. They provide general instruction (not just one subject or service); and
4. The above items are provided for at least part of the school-week (e.g. the school has employed the “hybrid” model of instruction)

Schools are not “open” if they:

1. Were in a county that never dropped below the Purple Tier on the State Blueprint for a Safer Economy unless a waiver was granted (prior waivers are still valid, but new waivers will not be offered); or
2. Were operating only in the manner permitted under CPH’s Cohorting Guidance

Schools uncertain as to their “open” status are advised to consult with legal counsel.

Please also note that AALRR’s Student Services and Disabilities Law Practice Group (SSDLPG) will be issuing an Alert later this week concerning CDPH’s January 14, 2021 guidance for schools.  Should you have any questions about the implications, obligations or actions that your district is contemplating taking or will be taking regarding students with disabilities or at-promise/at-risk youth, please contact one of our SSDLPG attorneys.

New Reporting Requirements for Schools

All schools must satisfy the following reporting requirements:

• Effective immediately, all schools must notify their Local Health Officer (“LHO”) via telephone within 24-hours of discovering any COVID-19 case among any student or employee who was present on campus within the 10 days preceding a positive test. Students’ personally identifiable information (including names, addresses, telephone numbers and dates of birth) is among what must be reported, and such disclosure is authorized under the Family Educational Rights and Privacy Act (“FERPA”). 
• Effective January 25, 2021, and continuing every other Monday (or Tuesday if Monday is a state holiday), all schools shall notify CDPH the extent to which they are serving students in-person. This information will be reported via a web form issued by CDPH.

Schools which are “open” must also satisfy the following reporting requirement:

• By February 1, 2021, open schools must complete and post a COVID-19 Safety Plan (“CSP”) (see discussion below).

Schools which are not yet “open,” but which intend to reopen must satisfy the following reporting requirement before reopening:

• 5 days prior to opening, schools in the Yellow, Orange, or Red Tier that have not reopened must complete and post a CSP on the school website homepage.
• 8 business days prior to reopening, schools in the Purple Tier that have not reopened, and are permitted to reopen for grades K-6, must complete and post a CSP on the school website homepage and must also submit the CSP “to their LHD and the State Safe Schools for All Team.” The 8-day period is based on the guidance that schools can open only if they do “not receive notification of a finding that the CSP is deficient within 7 business days of submission.”

New Criteria for School Reopening – COVID-19 Safety Plan

Under the CDPH Framework/Guidance, all schools must complete and post a COVID-19 Safety Plan (“CSP”) prior to reopening for in-person instruction.  Schools that are already open are required to post their CSPs by February 1, 2021 in order to remain open.  For schools that are not yet open, the requirement to post the CSP will vary according to whether the school is in the Yellow, Orange, Red or Purple Tier (discussed in more detail below).

To avoid duplicating efforts, Cal/OSHA’s COVID-19 Prevention Program (“CPP”) (which all schools should already have in place) is the first required component of the CSP.  For more information regarding the CPP, please refer to earlier firm alerts on the topic here, here, and here.  Refer also to CalOSHA’s Model.  The second and final component of the CSP is the COVID-19 School Guidance Checklist (“Checklist”). 

One CSP must be submitted on behalf of all schools, with site-specific precautions noted within the CSP, if there are features unique to the site that raise greater risks of COVID-19 within the LEA.  For private, faith-based, or charter schools within a single county and subject to the same governing authority, the governing authority may submit one CSP on behalf of all of its schools, but must address site-specific considerations and precautions.  Private, faith-based, and charter schools that are affiliated with a broader network must post and submit a CSP for each school.

The completed CSP and any applicable attachments must be posted publicly on the LEA’s website.  Many of the items on the Checklist will be addressed in a CPP and/or existing COVID-19 memoranda of understanding (MOU) between the LEA and one or more of its unions.  However, LEAs should carefully go through each item on the Checklist and ensure the existing CPP or MOU covers each item and is consistent with the new CDPH Framework/Guidance.  To the extent the Checklist includes items within the scope of representation that have not previously been negotiated, those items may need to be negotiated with the unions — this topic should be discussed with legal counsel.

We note there is a discrepancy between the consultation requirements of the CDPH Framework/Guidance (which is currently in effect) and the negotiation requirements in the Governor’s budget proposal (which has not been passed into law) with respect to development and posting of the CSP.  Under the Governor’s budget proposal (discussed in our previous Alerts here and here), all LEAs would be required, potentially as soon as February 1, 2021, to submit ratified certificated and classified CBAs or MOUs that support implementation of a CSP to the County Office of Education as a condition to receiving in-person instruction grants.  By contrast, for schools that have already reopened, the CDPH Framework/Guidance “strongly recommends” (but does not require) “consult[ation]” (not negotiation) with labor, parent and community organizations.

For schools in the Yellow, Orange, or Red Tier that have not already opened, the CDPH Framework/Guidance similarly states that consultation with labor, parent, and community organizations is “strongly recommended.”  K-6 schools that are in counties in the Purple Tier, however, “must” consult with labor, parent, and community organizations while developing, and prior to submitting, the CSP to the LHO, and must include an attestation of such consultation as part of the Checklist.

Although the Governor’s budget has not been finalized and legislative approval of that budget is uncertain, LEAs may wish to comply with the more stringent negotiation requirements in the Governor’s proposal, so as to qualify for funding in the event the Governor’s proposal is passed into law.

The above actions may involve decisions within the scope of representation under the Educational Employment Relations Act (EERA) which are not already covered in existing MOUs.  LEAs are advised to consult with legal counsel to determine when, and to what extent, collective bargaining is required.

CSP Submission & Posting Deadline

For schools that have already opened, CSPs must be submitted and publically-posted to the LEA’s website by February 1, 2021.  For schools that have not yet reopened, the submission and virtual public posting requirement for CSPs will be informed by the school’s Tier Status and adjusted case rate as follows:

Tier	Adjusted Case Rate	Test Positivity	CSP Submission & Posting Requirement for Schools Not Already Opened
Yellow	< 1.0	< 2%	CSP posted publicly for K-12th grades 5 days prior to in-person instruction.
Orange	1-3.9	2-4.9%	CSP posted publicly for K-12th grades 5 days prior to in-person instruction.
Red	4-7	5-8%	CSP posted publicly for K-12th grades 5 days prior to in-person instruction. (Must be in Red 5 days prior to reopening.)
Purple	>7	>8%	CSP posted publicly for K-6, and submitted concurrently to LHD and State Safe Schools for All Team for review in 7 business days. Approval is presumed. School may reopen on the 8th business day if there is no notification of deficiencies in the CSP. If school receives feedback on areas to improve and re-submits plan, the LHD and State Safe Schools for All Team will have 7 business days to review the revisions.  School may reopen on the 8th business day if does not receive additional feedback 7th-12th grade reopening not permitted if adjusted case rate > 7; K-6th grade reopening not permitted if adjust case rate > 25, though CSP can be posted and submitted for review.

New and Enhanced Safety Mitigation Strategies

A layering of mitigation strategies is recommended under the CDPH Framework/Guidance to enhance the efficacy of each strategy.  The familiar general mitigation strategies, ranked in the order of most effective to least effective, are:

1. Face coverings.
2. Stable groups.
3. Physical distancing.
4. Adequate ventilation.
5. Hand hygiene.
6. Symptom and close contact exposure screening, with exclusion from school for staff or students with symptoms or with confirmed close contact.
7. Surveillance or screening testing.

Recommendations with notable deviation from previous guidance are discussed in more detail below.

Student Face Covering Requirement

Under the CDPH Framework/Guidance, all students in grades K-12 are required to wear face coverings at all times (except for meal, snack, and nap times) while at school, unless exempted.  This differs from earlier guidance which only “strongly encourages” children between 2 years and second grade to wear face coverings.

Face covering requirements for youth sports are also strengthened.  Under the new guidance, participants in youth and adult sports “should” wear face coverings at all times when participating in the activity, even with heavy exertion (albeit with the potentially significant qualifier, “as tolerated”) both indoors and outdoors.

Persons exempted from the face covering requirement include:

• Children under age 2.
• People with a medical or mental health condition or disability that would impede them from properly wearing or handling a face covering, though the medical condition must be confirmed by a school district health team and therapists to qualify for an exemption. Such exempted persons must wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.
• Those with a communication disability, or when it would inhibit communication with a person who is hearing impaired. Those with communication disabilities or caregivers of those with communication disabilities can consider wearing a clear mask or cloth mask with a clear panel when appropriate.

Non-exempt students who will not wear a face covering, even when offered/provided by the school, must be excluded from campus, though schools are recommended to offer alternative educational opportunities for such excluded students. 

Staff Face Covering Requirement

All staff must wear face coverings “in accordance with [existing] CDPH guidelines unless Cal/OSHA standards require respiratory protection.”  For staff who routinely come into contact with others, the CDPH now recommends the use of disposable 3-ply surgical masks.

Distancing

While maintaining that staff and students must be distanced at least 6 feet away from one another, the CDPH Framework/Guidance permits a distance of at least 4 feet if the Superintendent of a school district is prepared to demonstrate that despite a good faith effort, including an effort to consider all outdoor and indoor space options and hybrid learning models, 6 feet of distance is not possible.  In such circumstances, CDPH recommends optimizing ventilation and using other separation techniques such as partitions between students or desks, or arranging desks in a way that minimizes face-to-face contact.

The CDPH Framework/Guidance also clarifies that short-term exposure of less than 6 feet, such as when a teacher is assisting a student one-on-one, is permitted so long as the duration is minimized and masks are worn.

Stable Cohorts/Groups/Pods

The August 25, 2020, Guidance Related to Cohorts for Children and Youth (last updated on September 4, 2020) is not affected by the CDPH Framework/Guidance, meaning that schools that are not permitted to reopen under state or local public health orders may continue to serve students in-person in small, stable cohorts, as specified in the Cohort Guidance.

The CDPH Framework/Guidance emphasizes stable groups as a mitigation strategy layer in schools, and provides specific stable group guidance on the various approaches to create stable groups for elementary, middle, and high school students.

Testing

The CDPH Framework/Guidance discusses a range of testing options, but does not impose any new testing obligations.  Instead, CDPH advises that “[a]ny school currently open is subject to the minimum testing requirement standards established by Cal/OSHA. These standards include response testing for exposed cases and outbreak testing for everyone weekly until no longer considered an outbreak.”  Please note the Governor’s Safe Schools For All Plan would establish different rules governing testing — but has not been passed into law.

Vaccination

The CDPH Framework/Guidance recommends vaccination, when available, but does not contained detailed guidance.  CDPH is preparing a separate vaccine guidance, which will be issued later.  Our most recent guidance on vaccination programs for employees can be found here.

Please note that the CDPH Framework/Guidance was updated on March 20, 2021 to reflect changes to: (1) reopening criteria for K through 12th grades, (2) posting and submission requirement for the COVID-19 Safety Plan (CSP), and (3) the minimum distancing requirement among students.  These changes can be found in our update alert here.

If you have any questions regarding this Alert, or need assistance with preparing or reviewing any of the forms required per the new reporting obligations, you can contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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