California Department of Public Health Issues Statewide Face-Covering Mandate. Community Colleges Are Not Exempt; Schools May Have Limited Exemption

06.19.2020

On June 18, 2020, the California Department of Public Health (CDPH) issued “Guidance for the Use of Face Coverings” (“the Guidance”).  As stated in the Guidance, persons throughout the state are now required to wear face coverings in most public settings.  Specifically, the Guidance “mandates that face coverings be worn state-wide in the circumstances and with the exceptions outlined below.”

Below, we discuss: (1) the general rule stated in the Guidance; (2) applicable exemptions; and (3) specific application of the Guidance to school and community college students, employees, board members and community members.

The Guidance fully applies to community colleges.  As discussed below, it is not entirely clear whether a partial exemption applies to school districts.

THE GUIDANCE REQUIRES FACE COVERINGS IN A BROAD RANGE OF SETTINGS

The Guidance applies in a number of settings applicable to educational entities.  The Guidance specifically applies, in part, to persons who are:

• Inside of, or in line to enter, any indoor public space . . . unless exempted by state guidelines for specific public settings (e.g., school or childcare center).
• Engaged in work, whether at the workplace or performing work off-site, when:
  • Interacting in-person with any member of the public;
  • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
  • Working in any space where food is prepared or packaged for sale or distribution to others;
  • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
  • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
• Driving or operating any public transportation or paratransit vehicle, taxi, or private car service or ride-sharing vehicle when passengers are present. When no passengers are present, face coverings are strongly recommended.
• While outdoors in public spaces when maintaining a physical distance of six feet from persons who are not members of the same household or residence is not feasible.

Note that only the first bullet point above even refers to an exemption for schools or childcare centers.  The other bullet points contain no such exemption.

GENERALLY-APPLICABLE EXEMPTIONS

Persons in the following categories are exempt from all requirements of the Guidance:

• Persons two years of age or under.
• Persons with medical conditions [if people in this category are employed in a job involving regular contact with others, they should wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it], mental health conditions, or disability that prevents wearing a face covering.
• Persons for whom face coverings could obstruct breathing, or who are unconscious, incapacitated, or who are otherwise unable to remove a face covering without assistance. This will have greater applicability to individuals with disabilities protected by federal and state laws (e.g. special education, Section 504, ADA, etc.).
• Person who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication. This will have greater applicability to individuals with disabilities protected by federal and state laws (e.g. special education, Section 504, ADA, etc., particularly those students whose language mode in whole or in part is oral language).
• Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.
• Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, providing that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence.
• Persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members, and when they are able to maintain a distance of at least six feet from others.

These are limited exemptions, and, by themselves, do not broadly exempt schools or colleges from the obligation to comply with the Guidance.

EXEMPTIONS ARISING FROM STATE GUIDELINES

The Guidance also contains one rather cryptic exemption, which seems likely to cause confusion amongst school districts.

That exemption states that the new face covering Guidance applies to persons “[i]nside of, or in line to enter, any indoor public space . . . unless exempted by state guidelines for specific public settings (e.g., school or childcare center).”  Below, we consider whether state guidelines applicable to schools operate to exempt persons from wearing face coverings in indoor public spaces located in schools.

• Community Colleges

There are no current state guidelines containing exemptions, with respect to face coverings, for community colleges.  Accordingly, the Guidance fully applies to community colleges, though child care programs operated within community colleges may be subject to separate exemptions.  Once state guidance is issued which addresses reopening of higher education, that guidance should be scrutinized to determine whether it contains an exemption to the new face-covering Guidance.

• School Districts

The state has issued guidelines discussing face coverings for K-12 institutions.  That guidance consists of: (1) CDPH guidance issued on June 5; and (2) CDE guidance issued on June 8.  Both of these documents are discussed in more detail in a recent Alert.  As stated in that Alert, both documents generally recommend (but don’t mandate) that students and staff wear face coverings in the school setting.  More specifically, that prior guidance suggests use of face shields for teachers, and addresses limited circumstances where special considerations may apply, specifically including early-grade students who may struggle with wearing masks, or students with disabilities who refuse or are unable to wear masks.

It is not clear, however, that these prior state guidelines now operate to exempt schools from the face covering mandate.  In particular, it is not clear that the prior (June 5) CDPH recommendation that students and staff wear face coverings in schools constitutes an “exempt[ion] by state guidance” for purposes of the later-issued face-covering mandate.  It appears that CDPH contemplated some exemption being applicable to schools, but the substance and scope of that exemption is simply not clear.

Additionally, because the June 5 CDPH guidance did not even address use of face coverings by persons other than students and employees (e.g. board members, community members, etc.), it appears there is no basis to find an exemption for board members, community members, etc.

APPLICATION OF THE GUIDANCE TO SCHOOLS/COLLEGES

For the reasons discussed above, the Guidance imposes the following requirements:

School/College Employees are required to wear face coverings in the following locations:

• inside
  • when interacting with the public;
  • in public areas (even if the public is not there);
  • in common areas (such as hallways, stairways, elevators, and parking facilities); and
  • in any room or enclosed area (including classrooms, buses, etc.) where other people are present and social distancing is not possible.

All Persons (including School/College students/employees) are required to wear face coverings in the following location:

• outside in public spaces when maintaining six feet of separation is not feasible.

All persons (including College students/employees but with the possible exception of K-12 students/employees) are additionally required to wear face coverings in the following location:

• inside, or in line to enter, any indoor public spaces (including classrooms, board rooms, etc.).
  • Comment regarding application to K-12 students/employees in the classroom: As discussed above, whether school (K-12) students and employees are required to wear face coverings inside, or in line to enter, any indoor public spaces (including classrooms), is not clear, although, as stated above, if school employees are in a room or enclosed area, they must wear a face covering when social distancing is not possible — no exemption applies to that circumstance.  As we have seen with previous state guidance, however, this is a fluid situation and we may get more state and local guidance over the remaining months until schools on traditional tracks begin.

School (K-12) Sports

It is not entirely clear how the June 18 CDPH guidance will apply to students engaged in team sports.  CIF issued guidance on June 10, 2020, that states, in part, “State, local or school district guidelines for cloth face coverings should be strictly followed… In the absence of guidelines to the contrary, we recommend that cloth face coverings be worn by students. Exceptions are swimming, distance running or other high intensity aerobic activity.”

The June 18 CDPH guidance does not address interscholastic sports, but does state a general exemption for outdoor recreation when six feet of social distancing is maintained.  This would appear to allow students to participate in team practices and conditioning under such conditions.

School/College Board Members, Visitors, and Members of the Public

When conducting board meetings and other on-campus visits by board members, community members, etc. face coverings will be required in the following locations:

• inside, or in line to enter, any indoor public spaces (including classrooms, board rooms, etc.).
• outside or in enclosed areas (e.g. buses) when maintaining six feet of separation is not feasible.

Please feel free to contact the 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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