Some Southern California Health Orders Amended With An Eye Towards School Reopening
This Alert is an update to our previously issued June 2, 2020 Alert: Southern California Health Orders Govern the Ability of Educational Employers to Return Non-Essential Workers to Campus
On Monday, June 8, 2020 the California Department of Education (“CDE”) issued its much anticipated guidebook for reopening K-12 schools for the 2020-2021 school year. This shortly followed (and incorporated) the June 5, 2020 interim industry guidance for school reopening by the California Department of Public Health (“CDPH”). (Collectively “CDE/CDPH Guidance”).
As addressed in a separate Alert, the CDE/CDPH guidance makes clear that decisions of K-12 institutions to reopen are subject to approval by local county public health officials based on their review of epidemiological data.
In recent days, local public health officials in parts of Southern California – specifically Los Angeles, San Diego, Ventura, and Santa Barbara Counties – have updated their health orders with an eye towards school reopening.
Los Angeles County
The Los Angeles County Department of Public Health issued a revised “Reopening Safer at Work and in the Community” order on June 11, 2020, which impacts school in three (3) important respects. A copy of the order is here.
First, the health order now broadly defines schools, colleges, and other educational institutions as “essential businesses.” Language from earlier health orders – indicating that such institutions were “essential” only for certain purposes (e.g. distance education, meal distribution, minimum basic operations, etc.) – has been removed.
This change effectively permits school districts and county superintendents to return previously “non-essential” workers to on-site operations once permission to reopen is granted. Upon issuance of State guidance applicable to reopening higher education, the same authority will likely apply to colleges and universities.
Second, the county health order states: “Public and private K-12 schools and school-based programs may begin planning for [the] forth-coming school year in compliance with the State Public Health Officer’s guidance for Schools and School-Based Programs.” This seems to fall short of broad authorization to reopen, but suggests that permission to reopen will be forthcoming. This language also suggests, but does not fully clarify, that, compliance with the specific provisions of the CDPH guidance may be mandatory for schools in Los Angeles County.
Third, the health order allows “day camps” – many of which utilize school facilities – to reopen. A specific health protocol (Appendix K) that applies to day camps is included in the new health order, and must be both posted and followed in connection with any day camp operations.
The Ventura County Health Officer issued an order effective late evening June 11, 2020, that allows for “schools and school-based programs” to open, subject to adherence to the CDPH guidance referenced above. A copy of the order can be found here.
The order identifies certain businesses and industries for which the CDPH has issued reopening guidance, one of which is the CDPH guidance issued on June 5 for schools and school-based programs. Within the order, the County Health Officer recognizes that the CDPH guidance generally allows for reopening “conditioned on the approval of local health officers,” and further specifies that he has approved the reopening of the businesses and activities described in the 11 businesses and industries listed in the order. As a result, the County Health Officer appears to have allowed for schools and school-based programs to reopen so long as they adhere to the CDPH guidance. The order specifically requires that reopening businesses and industries “must establish, implement and enforce site-specific prevention plan in accordance with” the CDPH guidance.
By allowing school districts to reopen with authorization from local public health officials, the CDPH guidance lifts prior State restrictions on returning “non-essential” workers to on-site operations. Accordingly, this order has the effect of permitting non-essential school district and county office workers to return to on-site operations.
While it is not entirely clear from the order whether schools and school-based programs must adhere to all of the conditions contained in the CDPH guidance, since the order does not make any carve-outs or other exceptions, this is likely the County Health Officer’s intent. As such, compliance with the specific provisions of the CDPH guidance may well be mandatory for schools in Ventura County.
In addition to the CDPH guidance, the order further states that all answers to the COVID-19 FAQs on the County’s website shall be deemed directives from the County Health Officer and included in his order. The only FAQs directly germane to schools include the operation of childcare facilities and obtaining school-based meals through food service programs. The FAQs that have been absorbed into the order are available for review here.
Santa Barbara County
Effective June 12, 2020, the Santa Barbara County Health Officer has authorized all “businesses,” defined to include any “public . . . agency” and “educational institution,” to open, so long as they meet several requirements. By bringing schools and educational institutions within the explicit definition of “businesses,” the Health Officer has indicated that they may safely and generally be opened. A copy of the order can be found here.
The June 12 order lists a number of prerequisites that businesses, including schools and educational institutions, must meet prior to opening their doors. Among other items, the order requires that businesses “[p]erform a detailed risk assessment including reviewing State and local guidance relevant to the Business and create a site-specific protection plan.” This is ostensibly a reference to the CDPH and CDE guidance publications mentioned above. Interestingly, the order does not explicitly require that schools and educational institutions adopt the CDPH and/or CDE guidance, as opposed to the Ventura County order mentioned above, but does indicate that both should be considered in conducting risk assessment plans.
The order also requires schools and educational institutions to train employees on how to reduce the spread of COVID-19; set up individual control measures and screenings; put disinfection protocols in place; and complete and post a Santa Barbara County-specific attestation and self-certification document that specifies compliance with the order.
Finally, schools and educational institutions must implement and post a specific social distancing protocol, which is included as an attachment to the order itself. The social distancing protocol, amongst other requirements, must be given to each employee working at the facility, and designated employees are required to monitor and enforce compliance at all times of operation. It should be noted that the order allows deviation from the social distancing protocol when needed to provide “childcare” and “care to individuals with special needs,” which may allow schools and educational institutions some relief in early childhood education and special education settings.
Assuming these steps are taken, this order has the effect of permitting non-essential school district and county office workers to return to on-site operations.
San Diego County
Effective June 16, 2020, the San Diego County Health Officer has authorized “[a]ll public, charter and private schools” to “hold classes or school business operations on the school campus, provided the school complies with the measures contained in the State COVID-19 Industry Guidance: Schools and School-Based Programs” issued by the California Department of Public Health. The June 16 local health order also notes that the implementation of Industry Guidance must include the face covering requirements.
Further, the June 16 local health order also encourages schools, where feasible, to adhere to the guidelines provided in Stronger Together: A Guidebook for the Safe Reopening of California’s Public Schools issued by the California Department of Education.
Schools also will be required to “complete and post a document detailing the actions the school is taking to comply with the CDPH Industry Guidance measures after considering the CDE Guidelines[.]” Unlike many of the other industries permitted to open in San Diego County, the County order does not offer a form schools may use to fulfill this posting requirement.
Colleges and universities remain closed to students under the June 16 local order, “except for research-related activities…and where necessary to train students who will serve as essential workers.”
A copy of the San Diego County Health Order is available here.
Please feel free to contact this Alert’s authors or your usual AALRR attorney with any questions regarding this Alert.
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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