California Department of Public Health Mandates School Closures for Schools Located in Counties on COVID-19 Watch List

07.19.2020

On July 17, 2020, the California Department of Public Health (“CDPH”) issued an updated directive on school re-openings for the 2020-2021 school year in light of the significant statewide increase in COVID-19 cases and hospitalizations in recent weeks.  Governor Gavin Newsom addressed the topic as well at his July 17, 2020, press conference and issued a written statement that tracks the CDPH directive. Currently, an official Executive Order has not yet been issued.

A copy of the CDPH “directive” from July 17, 2020 (“Directive”) can be viewed in full here:  http://www.egusd.net/wp-content/uploads/2020/07/CDPH.Schools-Reopening-Recommendations.7.17.20.pdf. The Directive provides historical background on school closures since mid-March 2020 due to the COVID-19 pandemic.  The Directive cross-references CDPH’s 19-page joint guidance with the California Department of Industrial Relations for safely re-opening schools, viewed in full here:  https://files.covid19.ca.gov/pdf/guidance-schools.pdf.  These updates have significant relevance to students with disabilities.

The essence of the Directive is that schools and school districts may reopen for in-person instruction only if they are located in a county (also referred to as a local health jurisdiction or “LHJ”) that has not been on a county monitoring list within the prior 14 days.  If the county in question has been on such a list, schools in that locale are to remain physically closed and may only provide distance learning until they have been off the monitoring list for at least 14 days. An exception to this rule is indicated in footnote 2 of the Directive and as indicated by the Governor’s Office:^[1]

Local health officers may grant a waiver to allow elementary schools to reopen in-person instruction if the waiver is requested by the district superintendent, in consultation with labor, parents and community-based organizations. When considering a waiver request, the local health officer must consider local data and consult with the California Department of Public Health.

For more information about whether your county/LHJ is on the monitoring list, please click here:   https://covid19.ca.gov/roadmap-counties/#track-data.

Schools and school districts that are permitted to re-open in the fall are subject to distance learning instruction only should there be COVID-19 spikes at a single school site or multiple school sites within a school district. The Directive advises that schools consult with local public health officials regarding re-closing when: (1) multiple cohorts within a school have multiple cases; or (2) five percent of students and staff within a school test positive within a 14-day period.  The Directive advises that districts consult with local public health officials regarding re-closing the entire district when 25 percent or more of schools have been closed within a 14-day period.

For those districts that are currently, or that were scheduled to be, providing services to students with disabilities during extended school year (“ESY”) 2020 or any point this summer through district facilities and personnel, nonpublic schools and/or nonpublic agencies, there is ambiguity about whether the July 17, 2020, directives have immediate effect.  It is our view that the most prudent course of action is for your school or district to consult with your local county health department and legal counsel before making any final decisions about whether to shutter schools and require distance learning only for the remaining duration of the ESY or summer 2020.

The above topics, and other issues arising from the Directive and guidance issued on July 17 will be addressed in further detail by our Northern and Southern California Education Law Practice Groups in a forthcoming Alert later this week.

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. © 2020 Atkinson, Andelson, Loya, Ruud & Romo

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^[1]  https://www.gov.ca.gov/2020/07/17/governor-gavin-newsom-lays-out-pandemic-plan-for-learning-and-safe-schools/.