On July 30, 2021 Governor Gregg Abbott issued Executive Order 38
which is intended to clarify existing public health mandates related to COVID-19. The Order impacts public school districts in various ways as schools prepare to welcome students back to school for the 2021-22 school year.
- School districts that conduct COVID-19 testing with FDA-approved tests will be required to report all test results, positive and negative, to the Texas Department of State Health Services and local public health authorities on a daily basis.
- School districts cannot compel any individual to receive a COVID-19 vaccine so long as the vaccine is under emergency use authorization.
- School districts cannot compel any individual to provide documentation of the person’s vaccination status.
- Public schools will operate under minimum health protocols established by the Commissioner of Education.
The most recent health protocols established by the Commissioner of Education were issued on June 5, 2021 and incorporate the CDC guidance for returning students to
in-person instruction. Updates to this guidance are expected soon. School districts will also be required to report all test-confirmed COVID-19 cases on a weekly basis to the Texas Department of State Health Services.
The CDC guidance includes prevention strategies to be considered in K-12 school settings:
Encourage vaccination for eligible individuals. This may include:
- serving as a community vaccination site
- engaging in public information campaigns to educate employees and community members with factual information about the benefits of vaccination
- partnering with trusted community members and health officials to share information with community members
- providing positive messaging to encourage vaccination
Face Coverings
- consistent and correct mask wearing for unvaccinated individuals in indoor settings
- masking outdoors is not required, but is recommended when social distancing is not feasible
- masks are required on school buses by CDC mandate
Social Distancing, Testing, Cleaning and Increase Ventilation
- Maintain 6 feet of distance from unvaccinated individuals
- Consider using cohorting strategies or learning “pods”
- Offer weekly testing for unvaccinated teachers and staff
- Offer testing for unvaccinated participants in athletics and extracurricular activities that involve singing and increased exhalation
- Improve ventilation in school buildings
As rising numbers of hospitalizations and serious medical complications from the Delta variant of the COVID-19 virus consume the news cycle in the remaining days before students return to school, school officials may wish to consider implementing additional measures to increase local vaccination rates and decrease absences due to illness in your schools:
- Consider adopting a “culture of masking” particularly in those grade levels where students are ineligible for vaccination. Just as we encourage young children to wash their hands and cover their mouths while sneezing, it is appropriate to encourage safe practices during the current health crisis. While masking cannot be mandated, there are a number of ways to encourage masking for all students; making masks
readily available, asking students to wear masks to keep their friends from getting ill, asking parents to encourage masking for their students, providing families with information from trusted local medical providers about the efficacy of face coverings in protecting unvaccinated children from the risk of illness. Remind all stakeholders of the implications or impact of students, teachers or staff testing positive for COVID-19.
- Consider using District messaging to encourage community vaccination. This could include positive messaging on school communication platforms, making vaccinations available at school facilities for community members and involving local leaders in providing factual information for staff and community members.
- For school employees, consider allowing additional paid leave for employees to obtain vaccinations, as well as in the event there are any side effects after vaccination. While vaccinations cannot be required while the vaccines are offered under emergency use authorization, they can be encouraged.
- Make certain that staff and families are familiar with quarantine recommendations, which only require unvaccinated individuals to follow quarantine protocols.
Think of local incentives that may increase the number of students, community members and school employees who elect to take vaccinations:
- Preferred parking for vaccinated staff;
- Meals, pizza parties, gift cards for vaccinated staff;
- Financial incentives for employees who provide evidence of vaccination;
- Required testing for non-vaccinated staff on a weekly or periodic basis;
- Enforced social distancing for non-vaccinated staff;
- Positive messaging about the impact of vaccination on student and staff attendance rates;
- Celebrations for positive vaccine outcomes/safe days at school;
- Vaccination rate challenges (First grade teachers vs. third grade teachers, etc.);
- For students eligible to be vaccinated, social distancing guidance from the CDC may be inconsistent with participation in certain extracurricular activities, or in the alternative, provision for social distancing may be a required aspect of extracurricular participation for unvaccinated participants.
HIPPA, the federal law that primarily speaks to insurance portability, contains certain privacy provisions, but those provisions generally apply to health care providers and insurers, and do not apply to information collected by a public school district. Guidance from the EEOC makes clear that for ADA purposes, employers must maintain the confidentiality of information related to an employee’s medical status, including temperature and screening checks, as well as information about exposure to the virus. If the District seeks
information about the vaccination status of its employees, there is no prohibition against doing so; however, the information that is obtained should be maintained in a confidential file, apart from the employee’s personnel file, and should be treated as confidential information.
As we enter the 2021-2022 school year, uncertainties about the continued spread of the COVID-19 virus and its variants will continue to require school officials to be forward-thinking and creative. With a goal of getting all students back to school safely, vaccination awareness and access will likely be an important part of any return to school plan.
Author: Sara Leon
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