CDPH Issues Higher Education Reopening Guidance
The California Department of Public Health (CDPH) issued its “COVID-19 Industry Guidance: Colleges of Higher Education” (“the Guidance”) on August 7, 2020. This Alert focus on the application of the Guidance to community college districts (“Colleges”).
On the whole, the Guidance consists of a set of “guidelines and considerations,” and advises that “decisions about following this guidance should be made in collaboration with local health officials and other authorities,” and that “implementation of this guidance should be tailored for each setting.” As such, the Guidance should be generally considered as a set of recommendations, not mandates. The Guidance does include a number of specific statements, however, which are presented as mandates (many of these are noted below).
Colleges must also abide by local public health requirements. Accordingly, where the Guidance authorizes certain conduct or presents a recommended course of action at odds with local public health guidance, Colleges must comply with the more restrictive rule, and follow the local public health guidance.
Face Covering Mandates/Exemptions
The Guidance states that CDPH’s Face Covering Guidance (see Alert) is fully applicable in the higher education setting, with the additional caveat that: “During in-person classes, instructors in a lecture hall who maintain a distance of six feet or more may wear a face shield with a drape.”
The Guidance additionally states that persons qualifying for exemptions from the face covering requirements cannot be excluded, and advises that Colleges will need to develop policies for handling these exemptions, in a manner consistent with the CDPH Face Covering Guidance.
As a practical matter, Colleges should give strong consideration to notifying the campus community of the need (and process) to apply for exemptions in advance of arriving on campus, so as to limit confrontation and facilitate more complete consideration of exemption requests, including determining: (1) what face covering, if any, is required; and (2) what adjustments will be required to protect the safety of other members of the campus community.
Colleges May Open on a Limited Basis
The Guidance states that indoor lectures are prohibited in counties on the County Monitoring List for three (3) consecutive days (see Alert). As such, indoor lectures are permitted in counties not on the County Monitoring List for three (3) consecutive days.
The Guidance also provides that specialized indoor courses (e.g., labs, studio arts) are permitted, if the design of the class imposes physical distancing on participation based on the nature of the work performed in the space.
These provisions appear to simultaneously broaden and limit the prior State authorization to conduct in-person programs only for essential workers (see Alert), by expanding the scope of permissible indoor lab/studio courses beyond programs for essential workers, while adding a broad prohibition on in-person lectures in counties on the Monitoring List, which appears equally applicable to programs for essential workers. Of course, local public health guidance may impose greater limits. Los Angeles County, for example, has issued public health guidance for higher education, which bars any form of in-person instruction other than programs for essential workers.
The Guidance states that campus services, such as food courts/restaurants, bookstores, libraries, childcare, etc. should be operated in a manner consistent with the Guidance and should also follow generally-applicable CDPH Guidance for such services.
Planning For, Responding To, and Avoiding Infection
The Guidance contains detailed recommendations for planning, identifying and responding to positive cases of COVID-19 on campus, as well as health recommendations aimed at avoiding infection, including the following:
Developing a Plan
The Guidance identifies development of a COVID-19 Prevention Plan as a key element of planning to reopen for in-person instruction. Indeed, given the current prevalence of infection in the state, and the lack of any clear timeframe for the development of an effective vaccine, College planning should assume that the pandemic will last indefinitely, and further that even if new infections are brought under control within a particular community or region at a particular time, new cases may be introduced and infection rates may rise again at any time.
After a College resumes in-person instruction, the College must be prepared to quickly respond to symptomatic or infected students, staff, and visitors. Likely concerns will include at least the following:
- With whom was the student/employee/visitor in contact, and when?
- When did the student/employee/visitor first exhibit symptoms? Receive a diagnosis?
- If there is not a confirmed diagnosis, is one pending, and what is the timeline for test results?
- Who at the college is responsible for obtaining reliable information regarding the above?
- If a student, employee, or visitor is exhibiting symptoms on campus, where will the individual wait until transportation can be arranged to leave campus, who if anyone will be with the individual until then?
- Should a particular classroom or area of a building be closed? The entire building? The campus? Should only some students/staff be told not to return for now? For how long? If information regarding contacts/testing results/confirmation of diagnosis is imperfect, conflicting, or uncertain, does that weigh in favor of or against closure? Who will make these decisions, according to what criteria, and how quickly?
- Must or should local public health officials be contacted to report information and/or seek guidance, and if so, who is responsible for doing that?
- What should be communicated to the campus community, when, and who will communicate it?
- Who will clear students/employees to return to campus and according to what criteria?
- What areas should be cleaned/disinfected, and how thoroughly? Are there employees on staff who are trained and equipped to do this, or is it necessary to call in an outside service with specialty training and equipment?
The Guidance identifies the following as among the elements that should be included in such a plan:
- A written, campus-specific plan, based on comprehensive risk assessment, with designation of a person at each campus responsible for implementation of the plan.
- Contact information for the local public health department.
- Incorporation of CDPH guidance for use of face coverings.
- Training and communication with students and employees.
- Investigation and contact tracing in the event of reported illness and/or outbreak.
- Ensuring that vendors and contractors adhere to COVID-19 guidelines.
- Regular evaluation of compliance with the plan and updating of the plan as needed.
Local public health orders may also specifically require the development of such plans. For example, the Los Angeles County Protocols for Institutes of Higher Education (August 10, 2020) specifically requires a college to have a “COVID-19 Containment, Response, and Control Plan,” with specified elements, including but not limited to designation of a Compliance Task Force, Coordinator, and liaison to the Department of Public Health and an Exposure Management Plan that identifies specific steps to be taken upon notification of College officials that any member of the campus community (faculty, staff, student or visitor) tests positive for, or has symptoms consistent with COVID-19. For those Colleges in counties where the local county health order does not include such specific requirements, the detailed elements of the Los Angeles County order may nevertheless be useful as a planning tool.
Colleges should also make particular note of the California Department of Industrial Relation’s Cal/OSHA Interim General Guidelines on Protecting Workers from COVID-19 (May 14, 2020). These state that California employers are required to establish and implement an Injury and Illness Prevention Program (IIPP) to protect employees from workplace hazards, including infectious diseases: “Employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must implement infection control measures . . .. For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.” The DIR’s website also has a page, “What an IIPP Is and How It Works”, which states the required elements of an IIPP and has various other links about how to develop one.
In developing plans, Colleges should refer to the most current guidance and requirements from CDPH, Cal/OSHA, CDC, the Chancellor’s Office, and applicable local public health orders. Because these source materials frequently change, Colleges are advised to document the specific source material (i.e. local/state/federal orders and guidance) on which their plans are based (including the date of issuance), and to continually monitor local, state, and federal public health guidance for any changes that may dictate changes to a College’s plans. Colleges are advised also to consult with local public health authorities, medical professionals (staff or external), JPAs/liability carriers, and legal counsel in the development of their plans.
Given the broad range of possible scenarios, it is advisable that Colleges develop specific response plans, and that such plans be communicated to employees, along with appropriate training, so that employees are aware of the requirements of the plan.
The Guidance suggests that faculty, staff and students should be subject to daily health screenings, including screening for fever and other symptoms, but does not require that screening be conducted in-person (i.e. self-checks conducted at home are permissible).
Planning for Infection and Considerations for Partial or Total Closures
The Guidance recommends that Colleges develop policies that encourage students and staff to stay home when sick, but does not mandate additional forms of leave above and beyond those already established by law.
The Guidance advises that individuals with symptoms of COVID-19, those with a confirmed case of COVID-19, and those who are close contacts of infected persons, should not return to class or College facilities until they are cleared to do so under applicable public health criteria (e.g. at least 10 days isolation, 14 days self-quarantine).
If infected/symptomatic individuals are identified while on campus, the Guidance advises that Colleges establish an isolation room, area, or building/floor, and make plans to provide or arrange for safe transportation home or to a health care facility, for those with symptoms or a confirmed case of COVID-19.
The Guidance also recommends that local public health officials and member of the campus community be notified immediately following any positive case of COVID-19. Such notice may consist of: (1) notice to an infected individual to isolate for at least 10 days; (2) notice to “close contacts” of infected individuals to self-quarantine for 14 days; (3) notice to those who were potentially exposed but who are not “close contacts” that they should carefully monitor for symptoms; and (4) more general notice to campus leadership and members of the campus community. As a practical matter, Colleges will likely need to conduct some manner of contact tracing in order to provide effective notice.
The Guidance also advises that Colleges regularly monitor local public health guidance and consult with the local public health department regarding additional follow-up needed to identify close contacts, and recommended actions, closures, or other measures to protect the community. Given current conditions, Colleges should assume that at some point after reopening for in-person instruction, partial or total campus closures may be necessary, and should plan for such eventualities.
General Measures, Hygiene and Cleaning
The Guidance recommends general preventive measures and hygiene practices, which include:
- Limit, to the greatest extent permitted by law, external community members from entering the site and using campus resources.
- Require or strongly recommend all students and staff be immunized against influenza in the fall (unless a personal medical condition indicates otherwise).
- The Guidance states that: “use of drinking fountains is prohibited” and advises that steps be taken to ensure all other water systems and features are safe to use after long periods of shutdown. (Emphasis added.)
- Increase ventilation by opening windows or adding portable room air cleaners with HEPA filters where possible. The Guidance also requires that: “Mechanical ventilation systems in buildings must be operated continuously when persons are in the building.” (Emphasis added.)
- Promote and reinforce healthy hygiene practices, including ensuring adequate supplies and sanitation stations around campus, posting signs that promote protective measures such as face covering and physical distancing, and include messages about preventative behavior in communications with school community in accordance with the Clery Act.
- Encourage better cleanliness habits among students and staff, including limiting the sharing of equipment and objects, and frequently tidying and wiping down shared areas.
- Intensify cleaning and disinfecting while following safety recommendation with cleaning product use such as ensuring proper ventilation during cleaning, choosing disinfectant products that reduce the risk of asthma, and following requirements for safe use from Cal/OSHA, the Department of Pesticide Regulation, and the Environmental Protection Agency.
- Maintain communication with local and state public health authorities to monitor current disease levels and control measures.
- Prepare for the possibility of repeated closures on campus.
The Guidance also recommends various measures aimed at promoting spacing/distance between individuals, including:
- Using larger rooms or outdoor spaces.
- Offering synchronous distance learning in addition to in-person classes (where authorized).
- Six (6) foot separation between seating/desks.
- Maximize distance between students in vehicles to the extent possible (e.g., skipping rows) and ensure face coverings are worn.
- Using physical barriers/partitions and floor/wall markings to encourage distancing.
- Close nonessential shared spaces (e.g. game rooms, lounges). In essential shared spaces, ensure six (6) foot separation and clean/disinfect between uses.
- The Guidance states: “In-person activities or meetings involving external groups or organizations, especially with individuals who are not from the local geographic area (e.g., community, town, city or county) are not allowed.”
- Study spaces must be limited to 25% room capacity or 100 people, whichever is less. Set up study spaces available for individual study so students are seated at least six feet apart and install physical barriers where possible.
- Provide pre-packaged grab-and-go options where food is offered. For dining halls, serve individually plated meals instead of buffet or self-serve stations. Use disposable food service items.
The Guidance recommends Colleges discourage sharing of high-touch materials to the extent possible (e.g., assigning each student their own art supplies, lab equipment, computers); avoid sharing of items that are difficult to clean or disinfect; avoid sharing electronic devices, books, pens and other learning aids; and, where sharing is required, limit use of supplies and equipment to one group of students at a time and clean and disinfect between use.
Maintaining Healthy Operations
The Guidance identifies specific recommended practices aimed at promoting health of students and employees, and reducing the likelihood of campus closure after reopening. These include:
- Offering options for students, faculty and staff who may be at higher risk of severe illness from COVID-19, including telework, remote course delivery, and modified job duties. Colleges may consider requests that are based on age, but are not required to provide reasonable accommodation based on age alone (unrelated to disability). Colleges should consider options on an individualized basis, and should follow established procedures for identifying and documenting reasonable accommodation of a disability where it is provided. If an accommodation is requested by a student or employee but is not approved by the College, the reasons should be explained and documented.
- Where possible: offer student services, and conduct other meetings and events for students, virtually or online; offer telework for employees and conduct meetings online; use modified (staggered) schedules for students and employees.
- Maintain awareness of state and local health policies and guidelines related to group gatherings to determine whether events may be held on campus and if so under what conditions. The Guidance states further in this regard, “In counties on the State County Data Monitoring List for three consecutive days, indoor gatherings are prohibited. For counties that are not on the State County Data Monitoring List, limit occupancy at the venue to 25% of room capacity or 100 people, whichever is fewer, and comply with any more restrictive local restrictions.”
- Designate a COVID-19 point of contact, and ensure students, faculty and staff know who this person is and how to contact them.
- Consider participating with state and local authorities in broader COVID-19 response measures, such as contact tracing and use of college resources, when available, to increase testing capacity.
- Maintain effective communication systems for reporting of COVID-19 cases to the College, and for informing employees, students and others as appropriate of closures and closures, while also maintaining confidentiality of individual students and employees.
- Consider limiting non-essential travel; encourage students and employees who use mass transit to consider other options where feasible (e.g. walking, bicycling, traveling by car alone or with household members only).
- Implement leave and excused absence policies; monitor absenteeism of employees and students; cross-train employees so back-up staffing is available.
- Ensure that any organizations affiliated with the College (e.g., recognized student organizations, auxiliary organizations, etc.) also follow these guidelines. Develop systems to enforce and hold affiliated organizations accountable for adhering to the Guidance.
- Promote and encourage coping and resilience for students and employees, for example, by healthy eating, exercise and sleep habits, and making information about support resources available to the campus community.
- Consider routine systematic testing of staff or students for current COVID19 infection, and procure resources to test students and staff if exposed. Note: the Guidance does not require Colleges to conduct testing for purposes of screening. Colleges are encouraged to consult with local public health officials as to the utility of such testing in light of local conditions, including local testing availability and turnaround times, and level of community transmission.
The Guidance contains a series of detailed recommendations for on-campus housing. Districts offering on-campus housing should consider these recommendations, as well as abiding by all other applicable provisions of the Guidance. These recommendations include:
- Address and mitigate equity and access when prioritizing limited housing for students and faculty.
- Provide frequent reminders (posters, verbally, videos) of COVID-19 preventative measures (hand washing, social distancing).
- Clean and disinfect common areas and high touch surfaces frequently throughout the day.
- Prohibit social events and activities consistent with current local and state health orders.
- Maintain physical distancing by reducing occupancy in on-campus housing, including single room occupancy when possible (except for family housing), minimizing the number of residents per bathroom; and restricting building access to non-residents.
The Centers for Disease Control and Prevention (“CDC”) issued the updated Shared Congregate Housing guidance on August 3, 2020, which applies to on-campus housing. In addition to the recommendations made by the CDPH, the CDC recommends the following:
- Arrange seating and tables in common areas to allow for at least 6-feet distance between individuals.
- Limit the number of individuals allowed in elevators at one time.
- Limit the number of individuals in common areas (kitchens, laundry rooms) and increase the frequency of cleaning.
In addition, the CDC provides recommendations for residents with COVID-19 symptoms or testing positive. The CDC recommends that a separate bathroom be designated for these residents, with a reduced cleaning schedule to limit the exposure to non-infected persons.
Specific Interim Guidance for Collegiate Athletics
The Guidance includes specific interim guidance for collegiate athletics, which refers extensively to NCAA requirements, but contains no mention of the California Community College Athletic Association (CCCAA). Because the CCCAA has delayed the Fall season for all sports to the Spring, with practice to begin in January, it may be advisable to consider the Guidance (along with any amendments and CCCAA requirements) as we get closer to the Spring.
In brief, the Guidance indicates that:
- Face coverings are mandatory, except for players engaged in play.
- In order to return to practice, a College-specific “return to play” safety plan is required, which provides for regular periodic COVID-19 testing of athletes and support staff. The Guidance does not specifically state how frequently such testing must be conducted, but gives as an “example” testing at least 25% of a team and staff population every week.
- In order to return to spectator-free competition, the College is required to provide COVID-19 testing and results within a 72-hour period in advance of competition in high risk sports (including: basketball, field hockey, football, ice hockey, lacrosse, rowing, rugby, soccer, squash, volleyball, water polo and wrestling); must coordinate with the opposing team to share testing results and related safety assurances before each game; and must provide notice to the other team of any positive test results occurring within 48 hours after competition.
The Guidance also recommends a written facility-specific COVID-19 prevention plan for each facility, and that the College designate a person responsible for responding to COVID-19 concerns for athletics overall, and for each sport, and that all coaches, staff, and students know how to contact this person. The Guidance states that “athletic facilities must limit occupancy to essential personnel, such as players, coaches, trainers, etc.”
Colleges likely have plans in place which address many of the elements included in the Guidance. By taking steps to fully consider and respond to the Guidance, in a manner consistent with local public health directives, Colleges will be better positioned to advance the public health needs of the campus community, while reducing liability risk. If you have any questions, please contact the authors or your usual AALRR attorney.
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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