Masked LadyOn August 31, 2021, the Acting Secretary of Health issued a Face Coverings Order for PreK-12 public schools, private schools, and other entities such as nursery schools and daycare facilities.

The new mandate went into effect on Sept. 7, 2021. In addition to the Face Coverings Order itself, a list of questions and answers about the masking order was provided by the Pennsylvania Department of Education to further explain what is required of both public and private schools in the implementation of the DOH Order. Those Q&As regarding masking requirements are set forth on the website of the Pennsylvania Department of Education.

We are aware that there are questions regarding the legal support for a school entity to request medical information.  These questions are derived by language set forth in Section 4 of the DOH order.  Section 4 Subsection A. 4 of the DOH Order uses the following language: “state they have a medical condition etc.” (emphasis supplied) This section also refers to a requirement for the district to provide “reasonable accommodations.”  It would be contradictory to read this provision to permit a person to “state entitlement to an exemption” while ignoring the requirement to provide reasonable accommodations.

The Order clearly sets forth in Section 3: “[a]ll alternatives to a face covering, including the use of a face shield should be exhausted before an individual is excepted from this order.”  Permitting an individual to solely state entitlement to a medical exception and receive the exemption from wearing a face covering an exemption is not in full compliance with the Order and creates a de facto parental opt-out that is not present in the language of the DOH order.  De facto opt-out is inconsistent with the entire text of the Order and would ignore the general provision in Section 1 that all teachers, child/students, staff, or visitors shall wear a face covering indoors, regardless of vaccination status, unless an exception applies.  The medical exception exists only if “wearing a face covering will either cause a medical condition or exacerbate an existing one including respiratory issues that impede breathing, a mental health condition or a disability.”  Without medical information deemed sufficient by the school entity, a school entity cannot properly conduct the reasonable accommodation analysis.  This analysis is performed on a case-by-case basis.  Each school entity has a nondiscrimination policy which defines the 504 and reasonable accommodation process.  This is not a new process and was the recommended process used last year during the initial Universal Mask Order.

The Q&A offered guidance on whether individuals, including parents and guardians of students, are required to show proof of an exception to the Order as follows:

Notwithstanding the exceptions in Section 3 of the Order school entities may require medical documentation. The Pennsylvania Department of Education recommends that any documentation that is provided be in accordance with Section 504 of the Rehabilitation Act or IDEA for the student’s medical or mental health condition or disability.

What this means is when the school entity receives a request for an Exception to the Face Covering Requirement under Section 3 of the Order it should initiate the process for determining whether reasonable accommodations should be offered to address the medical issue.  For K-12 school districts this is typically done through the Section 504 process which requires review of medical information and a discussion by a team of individuals to include the parents on what the student may need to access his/her educational environment.  This process is mandated under other requests by students for accommodations based on medical issues and/or disability and is in accordance with Federal Law and Regulations. The process assures children who have medical needs or disabilities receive adequate accommodations to provide such children the proper and sufficient opportunity to receive a meaningful education. Such process would occur whether the student is currently identified as eligible for Section 504 or IDEA services for other reasons or is not currently identified as qualifying for such services. The team process includes reviewing the presenting problem (i.e., inability to wear a mask) and a discussion and review of reasonable accommodations to address the inability to wear a mask/face covering.  The school entity is not required to provide a preferred accommodation but must offer a reasonable accommodation to address the presenting issue.  For example, a student who has a presenting medical condition of acne may be accommodated by wearing a face shield that does not come into contact with the student’s face and have built into the student’s schedule additional mask breaks.

Nothing in the DOH Order, and particularly in Section 3 or Section 4, limits or negates the obligation of the school entity to take these necessary steps, including receipt of adequate medical information, to ascertain whether a request for an exception to the mask mandate is appropriate, and the nature of any accommodations which may be necessary and effective.

As with any other child who seeks accommodations, while attending school, based upon an existing medical condition or disability, if the parent refuses to provide the necessary information to establish such need, it may be concluded there is no legitimate basis to establish any exception under Section 3 of the Order.

MBM believes this is the best legally sound interpretation of the order in its totality without regard to personal or political views.

We are aware that other school entities are choosing to use other measures, utilize parental opt-out requiring a waiver and release from liability, or choosing to disregard the mandate.  It is within the authority of each governing body to make these decisions for their communities.  Such decisions should be made with full knowledge of the stated positions from PDE and the DOH regarding enforcement of the mandate.  Consistent with MBM’s guidance PDE has shared a Message to School Communities that parental opt-outs are not in compliance with the DOH order.

Any school entity simply permitting a parent’s sign-off without evidence that the student has a medical or mental health condition or disability that precludes the wearing of a face covering is not in compliance with the Order. Under the Order, and as set forth in PDE’s Answers to FAQs, school entities must require all individuals, two years of age and older, to wear face coverings unless the individual has a medical or mental health condition or disability that precludes the wearing of a face covering. In accordance with Section 3 of the Order, before an individual is excepted from the Order, all alternatives to a face covering, including a face shield, are to be exhausted. It is recommended that any exception be in accordance with eligibility under Section 504 of the Rehabilitation Act or IDEA for such medical or mental health condition or disability. School entities should follow their established processes for determining student eligibility under those laws, including any medical documentation that they would normally require. There are exceptions to the Order; however, a parent’s opposition to the Order is not one of them.

​September 10, 2021 PDE Safe Schools Emergency Planning COVID-19 Messages to School Communities

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.