Yesterday, Governor Wolf and Secretary Levine issued a series of new COVID mitigation orders designed to combat the continued spread of the virus.  Most importantly for school districts, the Governor issued a “Public School Attestation Order” imposing certain requirements on school districts located in counties that have been under the “substantial” spread designation for two consecutive weeks.  Our office has spoken to several of our clients regarding the new order, and we have prepared the following responses to some of the most frequently asked questions.

  1. What are School Districts required to do by November 30, 2020?

School Districts are required to file the attestation form, located on the Pennsylvania Department of Education’s website, with PDE by 5:00PM on Monday, November 30, 2020.  The form must be signed by the District Superintendent and the School Board President.  School Districts must choose one of two options: 1.) Verify that the School District has shifted to a remote instructional model and will continue to deliver education services remotely until the county in which the School District is located in is removed from the “substantial” category for two consecutive weeks; or 2.) if the School District intends to continue to provide in-person instruction, verify that the School District is complying with the Secretary of Health’s updated masking order and PDE’s recommendations for schools following identification of a COVID case(s).

  1. What if our School District does not submit the form by November 30, 2020?

A School District that does not submit the form by the deadline is only permitted to provide remote instruction and must suspend all extracurricular activities while the applicable county is in a substantial stage of community transmission.

  1. Can the form be amended?

Yes, if a School District is currently in or has shifted to remote instruction and cases decline in the future to a point where the guidelines indicate that a school building could be opened, and the District wishes to return to in-person instruction, the form can be resubmitted with the alternative choice selected.

  1. If our School District shifts to a remote instruction model are we still permitted to play sports?

Yes, nothing in the order restricts student participation in sports or other extracurricular activities if the School District moves to a remote model.  It is assumed that extracurricular activities that can be performed in accordance with social distancing best practices (i.e. club meetings) will do so virtually.  Those extracurricular activities that must be performed in person can still do so in accordance with applicable safety guidelines.  If a School District does not submit the signed attestation form by November 30, 2020, or submits the form but refuses to comply with the order, then students will not be able to participate in any extracurricular activities, including sports.

  1. What does it mean to comply with PDE’s recommendations for schools following identification of a COVID case(s)?

Previously, the state provided recommendations to School Districts to assist them with determining if and when the District should close buildings following identification of a certain threshold of cases.  By submitting the attestation form and choosing to continue providing in-person instruction, the School District is now verifying that they will follow the guidelines and affirm that they will close buildings in accordance with the PDE guidelines.  In short, what used to be recommendations are now de facto mandates.  If a School District in a county with substantial community spread is still able to provide in-person instruction based on their existing case count, it must be prepared to shift to remote instruction if cases spike.  It is possible that the constant increase and decrease of cases could create a “yo-yo” effect resulting in buildings being open for short periods of time, followed by closures of several days due to spikes in cases.

  1. How are cases counted?

Both positive and presumed positive cases are counted toward the overall count.  In some instances, the School District can count multiple cases within the same household (i.e. siblings) as one case for the purposes of calculating the total cases.  The updated charts provided by PDE will provide clear parameters for determining how to count those cases.

  1. What is meant by “student population”?

In the absence of a clear definition, it is reasonable to interpret this as meaning the total student enrollment of a building.  For example, the student population of a high school containing 9th through 12th grades would be the total student enrollment of the four grades in the building.

  1. Our School District intended to provide in-person instruction to certain students requiring special education services, even though our regular education population will be under the remote learning model, is this still acceptable?

Based on PDE guidance issued with the orders, “If a public school entity intends to provide any in-person instruction (even for small, targeted populations of students) from November 30, 2020 forward, such instruction may not occur until the attestation form has been signed by the [Superintendent and the Board President] and returned to PDE.”  This would include small populations of special education students as well those students with 504 plans.

  1. If we shift to a remote educational model are we required to shut down a building completely?

No, the School District could still require the teaching staff to teach from their classrooms.  Students would not be in the building.

  1. Are other health guidelines still in place, such as social distancing and masking?

Yes, if in-person instruction is being offered, then school districts must still enforce best health practices such as social distancing.  Masks must be worn in compliance with Secretary Levine’s Order.  Students are permitted to remove masks during periods of physical exertion which could create a dangerous health or safety condition, such as during physical education classes.  In addition, students may remove masks while eating or drinking provided they are six feet apart or while performing a task where wearing a mask would be unsafe.

  1. Are School Districts required to comply with Governor Wolf’s order regarding telework?

Governor Wolf issued additional orders regarding other mitigation strategies.  In one of those orders, individuals are required to telework unless such work is “impossible.”  Our office is interpreting the order to mean that this requirement applies to businesses and not to School Districts.  Please contact our office with any questions regarding telework, as this may have implications on employment contracts and collective bargaining agreements.

  1. Have capacity restrictions been changed?

Yes, capacity limitations on indoor and outdoor events have been reduced.  An updated chart is included in Governor Wolf’s November 23, 2020 Mitigation, Enforcement, and Immunity Order.

Please contact our office with specific questions related to this most recent order.

Christina L. Lane
Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.