Vaccine and Mask Mandates Within Private K-12 Schools
Vaccine and Mask Mandates Within Private K-12 Schools
By H. Robert Showers, Esq. and William R. Thetford, Esq.
September 27, 2021
As the COVID crisis and associated regulations dealing with COVID and the Delta Variant have evolved, so have the questions facing our clients. People across Virginia and in other states are going back to school and are bringing vaccination and masking questions with them. Schools, and churches, as well, are concerned about the best approach to these questions and, should things go sideways, their legal liability.
Back in March of this year, Virginia Governor Northam signed into law SB 1303. The law is effective from July 1, 2021 to August of 2022. It requires schools to offer in-person education and to establish guidelines for effective virtual learning; it suggests a return to in-person school if those guidelines are not met. Generally, SB 1303 attempts to reduce COVID-19 transmission in schools across Virginia. It does not require teachers and staff to be vaccinated, but it does affirm the necessity of the vaccine’s availability to those who would take it. The law requires schools to maintain CDC recommendations to the extent possible.
Other states have signed similar governor’s orders or produced media encouraging a similar effect. North Carolina’s governor and health leaders sent a letter to schools around the state, requesting that the school boards adopt North Carolina’s COVID packet (called “StrongSchoolsNC Public Health Toolkit”), which mirrors CDC guidance. While Maryland and the District of Columbia have not released either executive orders or press releases on school mask or vaccine policies, both continue to exhort their residents to get the vaccine or get tested. D.C., for instance, provided monetary incentives for vaccinating children as the school season began.
Virginia’s Governor Northam announced a Public Health Order requiring masking in all Virginia schools, since CDC guidelines were updated on July 28 suggesting the same. The State Health Commissioner released an Order in support of SB 1303 and the CDC guidance. The Commissioner’s Order mandates “all individuals” ages two and up wear masks indoors “at public and private K-12 schools.” Significantly, this Order applies to everyone inside a school, not just students, teachers, and staff. Also noteworthy is the Order’s application to public and private schools. We expect that there may be some legal challenges to the authority of the Governor to impose the mandate on private schools. Virginia legal code does give the State Health Commissioner power to enact orders “to meet any emergency…dangerous to the public health.” For now, the Order clearly claims to exercise such power and it is uncertain whether any challenges will be successful.
The State Health Commissioner’s Order provides the standard exceptions: Masks may be removed for eating, drinking, playing brass or woodwind instruments (with six feet of distance), religious rituals, people with health conditions or disabilities that prohibit wearing a mask. The Order does not provide exceptions for general medical concerns. It does state the possibility of an accommodation for those who have sincerely held religious beliefs, but it is unclear what that would look like in the mask context (as opposed to the well-trodden ground in the vaccine context).
Strategies for Handling Exemption Requests
Before solidifying one approach, consider that the best approach for now, amidst this uncertainty, is flexibility. You will have to take into consideration the legal requirements, threat of legal liability, CDC guidance, and other aspects of your organization’s situation. Clarity by thorough and regular communication on school or church policy may help mitigate the inevitable frustration.
Parents and attendees most concerned will likely request exemptions from mask or vaccine requirements. Currently, only a mask is required to attend school in person in Virginia; vaccines are strongly suggested by authorities for those aged 12 and up but are not, at this time, required for K-12 schools.
Most public-school districts and many private schools have thus far followed or professed to follow the new Order. However, implementation has varied. Some counties have made headlines by stating they will enforce the mask requirement, while also signaling that they would liberally grant exemption requests from parents without question or verification. Others have professed to follow the Order while allowing parents to “opt out.”
Some schools have been very strict on those who have requested exemptions in good faith due to medical or other reasons. Our office has been flooded with calls from people who have been denied exemptions for what they thought were well-grounded requests. At this point, schools (and employers) are best off taking a middle-of-the-road approach. This means reviewing each exemption request in good faith, granting reasonable accommodations when possible, and documenting the reasons. Unfortunately, outside of the exceptions created by the orders, there is little maneuverability to create more specific exceptions for particular cases.
An “opt out” format to the mask mandate, which some schools have adopted, appears to contradict the commissioner’s Order. Such a format suggests the Order is optional; it is not. It is unclear how aggressively the state will enforce the Order, or whether it will be successfully challenged, but in the event of either criminal enforcement or question of civil liability an “opt out” format is unlikely to pass legal muster.
On the other hand, it is unnecessary to interrogate the parent requesting a mask exception. Schools should simply get a record from parents to support the request before granting an exemption. If it is a request on medical grounds, ask for a doctor’s note explaining what those grounds are. Requests for exemption from the vaccine on religious grounds are common and, in many cases, legitimate. We expect true religious exemptions to be rarer for mask wearing, as we are not aware what religious grounds would require someone not to wear a mask but be aware of that possibility. If a parent does provide documentation for a mask exemption, you can accept it; don’t pry too deeply: it is their own assertion. Some organizations have been requiring a letter from a religious leader, as well, but that is an aberration from traditional First Amendment law, and we do not recommend requiring it.
As supporters of religious liberty, we do not encourage those seeking or accepting exemptions to shoehorn exemption requests for other reasons (for instance, health concerns or concerns over the efficacy of masks or the vaccine) into religious exemptions. This might cause unnecessary suspicion of the concept of religious exemptions under the First Amendment, which is a prized feature of our constitutional order.
SB 1303 and its associated orders from the state pertain to schools, not their attendees, so schools must beware.
In other words, even when parents request the exemptions, it is more likely that the school will be held liable if there is an investigation or outbreak at the school, (a) as a result of a perceived (or actual) low-compliance rate with the mandate, or (b) as a result of a high exemption rate from the mandate, and (c) the school cannot show it exercised due diligence in its documentation. The school may be charged with violating the Commissioner’s Order and/or face civil liability in a related lawsuit.
Vaccine Exemptions for Employers and Schools
There is no mandate that schools require the vaccine at this point; however, many universities have required it.
Relatedly, a burning question these last few months has been: “Can employers require employees to get vaccinated?” The short answer is yes, generally. Under the U.S. Equal Employment Opportunity Commission’s enforcement, reasonable accommodations and non-discrimination standards must typically allow two types of accommodations, religious and medical, absent undue hardship on the employer. This includes exemptions to the COVID-19 vaccine.
That “reasonable accommodation” phrase is the legal key here. What accommodation is provided may also be controversial. It may mean social distancing, remote work, temperature checks, or wearing masks and regular testing for those who are exempted from a vaccine requirement, in order to come in close contact with others at church, at the workplace, or at school. In schools, especially, where children under certain ages cannot be vaccinated, masks and testing or temperature checks may be standard. In a workplace, where employees are over the age for vaccination, it would probably be easy to create a reasonable accommodation for a remote worker. If the employee works daily in proximity with older coworkers who are unvaccinated and are in an at-risk category, that would likely be harder to accommodate in a “reasonable” manner.
Of course, private employers are generally free not to require vaccine use. That will change slightly when the Biden Administration’s proposed executive order takes effect. The President announced that he has directed OSHA to create a mandate for employers with more than 100 employees to require their employees either to be vaccinated or wear masks and get tested once per week before coming into the workplace. The President also announced that federal employees and contractors would be subject to an even stricter vaccine mandate that may not have an alternative for regular testing.
For schools and universities, the main charges are not employees; children are the most significant (and public-facing) group at a school. However, the legal analysis is likely the same. Public schools must follow county, state, and federal guidance on vaccines, which means vaccines may be required at some point. As with mask mandates, school officials should get record of the reason for the exemptions. We expect there to be more legitimate vaccine exemption requests than mask exemption requests that a school will need to accommodate. If someone requests a religious exemption, get a statement from the parent. If the concerned party requests a medical exception, get a doctor’s note.
Strategies for Protection from Legal Liability
Since mask and vaccine exception requests are not uncommon, some process could be drafted for basic requests. Taking each case on its own merit, though, rather than granting every request carte blanche, will help keep the organization out of court and legal costs in pocket.
In addition to records and documentation of any exemption requests, a thorough COVID waiver will help protect the organization. Some schools have sought to shift legal liability to the families of those who request the exemption that the school grants. While this may make sense in theory, the forms schools have been asking parents to sign likely would not have the desired legal effect. Rather than a single-sentence check-box form for risk acceptance, present a waiver to sign with an indemnification and assumption of the risk agreement. All parents would probably need to sign, not just the parents requesting exemptions. Our firm regularly reviews these types of waivers, and can help your private school or church add this tool to help reduce the risk of legal liability and create clear expectations among parents.
Having a waiver and documentation of reasons for mask and vaccine exemptions are important aspects of any legal defense against the state or any personal injury suit as a result of a COVID-related sickness traced to the organization. Documentation shows the organization did its due diligence in complying with the order. A case-by-case basis for exemptions helps protect against the risks of an overly strict policy on exceptions (which may hurt individuals with legitimate needs), and an overly loose policy (which may be prosecuted by state authorities). Willful violation of the Order is a Class 1 misdemeanor, which could result in jail time and a fine.
Mixed in with health concerns is the matter of public relations. If someone was to become seriously ill or die because of COVID, and the source of the illness was drawn to the school or church, that would be a serious reputational matter, even if no lawsuit were filed. Disaster aside, an organization should be clear on its policies related to masks where required by law or executive order, and on its exemption records in relation to its commitment to children, its mission, staff, and donors. Even those who disagree with a particular stance should be able to understand why the organization has its policy.
Due to the changing guidance from the CDC because of the dynamic COVID situation, a baseline approach is to be transparent in the decisions made about vaccines and masks and have record of why exemptions were provided for each case. Policies may have to be made and re-made in the coming months. Keep open lines of communication to parents, students, staff, and visitors, so that they can make informed and judicious decisions in these frustrating times. Continue to monitor the situation of the state and locale of the organization and update policies; consult with an experienced attorney in your state with COVID and religious liberty expertise for further guidance.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at email@example.com or Will Thetford at firstname.lastname@example.org for legal advice that will meet your specific needs.
 Act of July 1, 2021, ch. 456, 2021 Va. Spec. Sess. I (providing in-person instruction to students during the COVID-19 pandemic) available at https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0456.
 Gov. Cooper, State Health Leaders Urge Some Schools To Revisit Decisions and Fully Implement Health Protections, NC Governor Roy Cooper (Aug. 13, 2021), https://governor.nc.gov/
 DC Health Encourages District Residents to Continue to Get Tested for COVID-19, Executive Office of the Mayor (Aug. 12, 2021), https://mayor.dc.gov/release/dc-health-encourages-district-residents-continue-get-tested-covid-19; Vaccine Milestone: Maryland Administers Over 7.5 Million COVID-19 Vaccines, The Office of Governor Larry Hogan (Aug. 28, 2021), https://governor.
 Muriel Bowser, Tomorrow: Back to School Block Party, District of Columbia: News From Mayor Muriel Bowser (Aug. 13, 2021), https://content.govdelivery.com/accounts/DCWASH/
 Governor Northam Announces Public Health Order to Require Universal Masking in K-12 Schools, Office of the Governor (Aug. 12, 2021), https://www.governor.virginia.gov/newsroom/all-releases/2021/august/headline-902544-en.html.
 Va. Order of Public Health Emergency Requiring Masks in K-12 Schools (Aug. 12, 2021) available at https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/PHE-Order_K-12-8-12-2021.pdf.
 Va. Code §§ 22.1-271.1–22.1-271.2, 32.1-27, https://law.lis.virginia.gov/vacode/title22.1/chapter14/section22.1-271.1.
 Robin Earl, Under pressure from state government, school board reverses course and mandates masks, Fauquier Times (Aug. 13, 2021), https://www.fauquier.com/news/under-pressure-from-state-government-school-board-reverses-course-and-mandates-masks/article_5db97fe6-fc66-11eb-9242-b37f032f76b9.html.
 What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Emp’t Opportunity Comm’n https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last updated May 28, 2021).
 Summary Guidance for Religious Accommodations and Exemptions From COVID-19 Vaccination Mandates, Alliance Defending Freedom https://adflegal.org/resources/covid19-vaccine-mandate (last visited September 24, 2021).
 School Mask Mandates – In Illinois and Beyond, Wagenmaker & Oberly (Aug. 13, 2021), https://wagenmakerlaw.com/blog/school-mask-mandates-illinois-and-beyond.