COVID-19 FAQ

If a contractor notifies the school that an employee of the contractor has an approved exception to the vaccination requirement, does the school have to accommodate those exceptions? (Revised Sept. 13)
The school is required to provide reasonable accommodations to staff, students and visitors to its property, including contractors. The school is not required to provide the same accommodations for contractors as it does for its employees; what may be a reasonable accommodation for the school’s employees, may not be a reasonable accommodation for contractors. Two potential reasonable steps for contractors who qualify for a medical or religious exception include remote work or unpaid leave while the vaccination requirement is in place. Additionally, according to the Oregon Health Authority, reasonable steps may also include “weekly testing, a fitted N95 mask, additional distancing or a face mask with a face shield.” OHA 3874 School Vaccine FAQ (state.or.us). The contractor as the employer for its employees decides whether their employees are approved for a vaccine exception and determines reasonable accommodations for their employees. That being said, the school has control over its property and can decide whether to impose more stringent health and safety protocols on their property. OAR 333-019-1030(13) specifically states that schools are not prohibited from “having more restrictive or additional requirements…” Schools are advised to enter into a written agreement with its contractors to memorialize the understanding between the school and contractor regarding COVID-19 health protocols including masks and vaccinations. PACE created a sample COVID-19 Contract Addendum to address these issues. Schools are advised to work with their legal counsel or pacelegal@osba.org as they adapt this sample for their use.  

Does PACE have sample contract language to address COVID liability and mask and vaccination requirements for contractors? (Sept. 13)
Yes.  PACE has created a sample COVID-19 Contract Addendum to address COVID-19 liability and mask and vaccination requirements for contractors.

Does the vaccine requirement for school staff and volunteers come from a law? (Sept. 10)
Yes. Oregon’s mandatory vaccine requirement for school staff and volunteers is found in OAR 333-019-1030. Like Oregon state statutes, Oregon administrative rules are laws. See ORS 183.310 and Bronson v. Moonen, 270 Or. 469, 476, 528 P.2d 82, 85 (1974) "Administrative rules and regulations are to be regarded as legislative enactments having the same effect as if enacted by the legislature as part of the original statute." Read about OHA's legal ability to adopt rules to control communicable diseases in an explanatory letter from OHA Director Patrick Allen. 

Are students required to be vaccinated for COVID-19? (Sept. 10)
At this time, students are not generally required by law to be vaccinated against COVID-19. However, if the student is age 16 or older and is employed by the school or is volunteering at the school and the student has direct or indirect contact with students as part of their employment or volunteer service for the school, the student must be vaccinated. OAR 333-019-1030

Which contractors are required to be vaccinated under the vaccination requirement? (Sept. 10)
Any contractor who is 16 or older and “who is engaged to provide goods or services to or at a school through any formal or informal agreement, whether compensated or uncompensated…” and “providing goods or services at or for a school that includes direct or indirect contact with students” is required to be vaccinated under the law. Short-term visitors, including individuals making deliveries, are not required to be vaccinated. The rule does not prohibit the school from imposing more restrictive or additional requirements. OAR 333-019-1030  “Direct” and “indirect” contact with students are terms that are not defined by the law, nor is the term “short-term visitors.” The school is advised to consult with legal counsel as it defines these terms.    

Are contractors allowed to pursue a medical or religious exception to the vaccination requirement? (Sept. 10)
Yes. OAR 333-019-1030 provides that a school may not employ, contract with or accept the volunteer services of teachers, school staff or volunteers who are teaching, working, learning, studying, assisting, observing or volunteering at a school unless the teachers or school staff are fully vaccinated against COVID-19 or have a documented medical or religious exception.

If a contractor approves a religious or disability exception to the vaccination requirement for its employees, can the school be involved in deciding the safety precautions that will be put in place to protect unvaccinated teachers, school staff, volunteers and students from contracting and spreading COVID-19 in the school? (Sept. 10)
Yes. The school has an obligation under the law to take reasonable steps to ensure that unvaccinated teachers, school staff and volunteers are protected from contracting and spreading COVID-19.  This requires the school to take reasonable steps to make sure that third parties, like contractors, who are coming into the school are not spreading COVID-19 at the school. OAR 333-019-1030.  OAR 333-019-1030(13) specifically states that schools are not prohibited from “having more restrictive or additional requirements…”

Can the school increase its custodial staff?

We know that careful and repeated cleaning of facilities is one way to slow the spread of COVID-19. Schools should refer to the applicable CBA when considering hiring new employees to assist in this. The COVID-19 virus is spreading rapidly requiring school facilities to be cleaned daily as new cases occur. See CDC guidance regarding cleaning.  

Can the school contract with outside vendors for cleaning?

Some schools are looking to contract with third parties to meet the additional cleaning needs. Schools should review their CBAs and applicable procurement laws prior to contracting out. Emergency procurement may apply. 

Are cleaning costs covered by PACE?

These costs are not reimbursable by PACE and a district should not enter into such a contract with the assumption that these costs will be reimbursable by any insurance provider. Districts should, however, keep track of their internal cleaning expenses as some of these may be reimbursable by State and Federal Authorities in the future. PACE recommends following the CDC Environmental Cleaning and Disinfection Recommendations.

What is contact tracing?
Contact tracing is the process of identifying people who may have come in close contact with a COVID-19 infected person and collecting information about those contacts.

What are a school’s COVID-19 contact tracing responsibilities? (June 29)
Schools are no longer required to conduct COVID-19 contact tracing, however ODE and OHA strongly advise schools to maintain a system of daily logs for students and cohorts to assist in contact tracing. ODE and OHA guidance recommends that such a system be developed in consultation with a school nurse or local public health authority official. Sample logs and other contact tracing resources can be found in the Oregon School Nurses Association COVID-19 Toolkit. 

Are schools required to offer access to COVID-19 testing? (June 29)
Schools are not required to offer access to COVID-19 testing, however ODE and OHA strongly recommend that schools implement OHA-sponsored, voluntary COVID-19 testing. 

How do schools obtain COVID-19 tests? (June 29)
Schools should coordinate with their local public health authority when planning for COVID-19 testing. 

How are COVID-19 tests administered? (June 29)
Schools should coordinate with their local public health authority regarding COVID-19 test administration. 

Can schools require that students self-administer a COVID-19 test when they become aware that a student is symptomatic or is known to have been exposed to someone with COVID-19? (June 29)
No. Students must never be forced or coerced to participate in the testing process. Schools must obtain written consent from the student prior to undergoing COVID-19 testing. OHA has developed a written consent form for this purpose.

What are the privacy implications of COVID-19 test results? (Jan. 20)
Student and staff COVID-19 test results (positive or negative) must be kept confidential. Student test results may be shared with the student and their parent/guardian, and student and staff test results may be reported to local health authorities as required by law.

Do schools have liability coverage from PACE for COVID-19 testing? (Jan. 20)
Please review the PACE Communicable Disease FAQ or contact PACE Underwriting for questions regarding PACE coverage. There are state and federal laws (HB 4402 and the Public Readiness and Emergency Preparedness Act (PREP), respectively) which may provide liability protection to schools engaged in the COVID-19 test administration process. We recommend you reach out to your legal counsel or PACE Legal for additional information about liability protection matters.

Can outside organizations use school facilities as COVID-19 testing locations? (Jan. 20)
Yes, but it is important to note that schools do not have liability coverage for damages assessed against a school for injuries arising from the COVID-19 testing process. If your school permits an eligible outside organization to use school facilities for COVID-19 testing, you should execute a facilities use COVID-19 addendum. This form should be used in conjunction with your standard facilities use agreement forms. These forms as well as other waivers, forms and sample language are available on the PACE website. 

Are there any COVID-19 related requirements or restrictions pertaining to school provided day care programs? (June 29)

On May 18, 2021, the Oregon Early Learning Division (ELD) issued new guidance for having a center-based child care facility. Additionally, pursuant to the June 22, 2021 ELD COVID-19 Transition Update, any temporary child care facilities (“pop-ups”) may continue to operate as Emergency Child Care Facilities at this time, but should expect to end operations by August 31, 2021.

Are there any COVID-19 related requirements or restrictions pertaining to school playgrounds? (June 29)

No, school playgrounds are no longer subject to any COVID-19 requirements or restrictions. However, ODE’s Ready Schools, Safe Learners Resiliency Framework for the 2021-22 School Year, strongly encourages the continuation of health and safety strategies, including regular hand-washing, and maintaining physical distancing and stable student cohorts.

Are there any COVID-19 related requirements or restrictions pertaining to schools allowing facility use by outside groups such as youth athletics and summer camps? (June 29)

No, there are no COVID-19 related requirements or restrictions pertaining to schools allowing facility use by outside groups such as youth athletics and summer camps. However, if you choose to permit third-party facility use, we strongly recommend using our standard facilities use agreement form, in conjunction with our facilities use COVID-19 addendum. These forms as well as other waivers, forms and sample language are available on the PACE website. 

Should we continue using the PACE facility use form along with the COVID-19 addendum? (June 29)

Yes, if you choose to permit third-party facility use, we strongly recommend using our standard facilities use agreement form, in conjunction with our facilities use COVID-19 addendum. These forms as well as other waivers, forms and sample language are available on the PACE website. 

Does Oregon’s mandatory mask requirement in schools come from a law? (Aug. 19)
 
Yes. Oregon’s mandatory mask requirement for schools is found in OAR 333-019-1015. Like Oregon state statutes, Oregon administrative rules are laws. See ORS 183.310  and Bronson v. Moonen, 270 Or. 469, 476, 528 P.2d 82, 85 (1974) ("Administrative rules and regulations are to be regarded as legislative enactments having the same effect as if enacted by the legislature as part of the original statute.") 

How should schools respond to requests that a student not wear a mask due to their disability? (Aug. 18)

Schools should follow their established processes under Section 504 of the Rehabilitation Act or the Individuals with Disabilities Education Act (IDEA). For students not currently served under Section 504 or IDEA, this may prompt the need for an evaluation of the student’s eligibility for support under Section 504 or IDEA. Adaptations, modifications, or accommodations around mask-wearing should be considered and implemented on an individual basis after the student’s team reviews relevant information and provides the student’s parent(s) with a meaningful opportunity to participate. ODE provides guidance on this topic in Considering Reasonable Accommodation of Face Covering Requirements 2021-22 School Year and in this explanatory letter from ODE to school leaders.  

Are facial coverings required to be worn by athletes and spectators during athletic practices and events? (Aug. 18) 

Schools must ensure that all individuals, including but not limited to staff, students, contractors and visitors wear a mask indoors when at school during regular school hours, engaged in educational activities such as field trips or off-campus classes during regular school hours, and at school engaged in educational activities outside of regular school hours. 

Students are not required to wear a mask when “engaged in a sport during physical education class such as swimming, other water sports, or a sport where wearing a mask could be a strangulation hazard such as gymnastics or wrestling” or  “practicing or playing a competitive extracurricular sport at any level.” (OAR 333-019-1015).  Although the administrative rules indicate facial coverings are not required for athletes in these limited circumstances, ODE states that masks are “strongly recommended.”  (COSA - OASE Update - Aug. 2, 2021, pg. 17).  
 
Pursuant to OAR 333-019-1015, spectators at indoor sports events must wear masks because the administrative rule states “individuals, regardless of vaccination status, are required to wear a mask, face covering or face shield when in an indoor space.” Spectators may remove their masks if they are eating, drinking, or meet one of the limited exemptions. 

If the school athletics take place outdoors, then the current state mandates do not require athletes and spectators to wear masks. (RSSL pg. 8).

The OSAA has released this guidance. 
 
Note: If a local government's mask laws are more restrictive than statewide laws, then schools district must adhere to whichever law is more restrictive. (OAR 333-019-1015).  Schools are advised to consult with their local governing bodies. 

When is a face covering not required inside a school? (Aug. 18)

Effective Aug. 12, 2021, OHA released a newly adopted statewide rule OAR 333-019-1015 Masking Requirements in Schools, which provides that a face covering is not required for an individual in a school when:

(a) Actively eating or drinking
(b) Sleeping
(c) Playing a musical instrument that requires using the mouth
(d) Engaged in a sport during physical education class such as swimming, other water sports, or a sport where wearing a mask could be a strangulation hazard such as gymnastics or wrestling.
(e) Is in a private individual workspace
(f) Is under five years of age; unless an individual is using public transportation including school buses in which case an individual under two years of age is not required to wear a mask
(g) Is practicing or playing a competitive extracurricular sport at any level

Note: If a local government's mask laws are more restrictive than statewide laws, then schools must adhere to whichever law is more restrictive. (OAR 333-019-1015).  Schools are advised to consult with their local governing bodies.  

Are students required to wear face coverings at school? (Aug. 18)

Indoors: Yes, subject to limited exceptions. On Aug. 13, OHA released its newly adopted statewide rule, OAR 333-019-1025, requiring face coverings in all indoor spaces. Pursuant to this new rule, a face covering must be worn by all individuals at all times when they are indoors, subject to limited exceptions. 

Schools are also subject to OAR 333-019-1015, requiring universal use of face coverings inside schools, subject to limited exceptions.

Schools continue to be required to make reasonable accommodations under the Americans with Disabilities Act, the Rehabilitation Act, and the Individuals with Disabilities Education Act.

Outdoors: No, per OHA guidance, it is acceptable for both fully vaccinated and unvaccinated people to be outdoors without a face covering. (RSSL pg. 8). 

Are masks required at school board meetings? (Aug. 16)

Yes. On Aug. 10, Gov. Brown announced an indoor mask mandate that took effect Aug. 13. OHA subsequently enacted OAR 333-019-1015 requiring masks in all indoor spaces. Pursuant to the new rule, school boards must ensure that employees, contractors, guests, visitors and other individuals comply with this rule within the indoor space. School boards must also post signs at every entrance to the board meeting stating that face coverings are required.  

What is the law governing facial coverings in schools, and how long is it in effect? (Aug. 9)

The law governing the facial covering mandate in schools is found in OAR 333-019-1015, and is effective Aug. 2, 2021 until Jan. 28, 2022.

Will the facial covering rules change throughout the school year? (Aug. 9)

The law requiring facial coverings in schools is OAR 333-019-1015 and that law is set to expire on Jan. 28, 2022. Additionally, ODE has stated in its most recent RSSL guidance that “OHA will review this rule monthly to determine the need for it to continue.” (RSSL pg. 7)

Can students take mask breaks? (Aug. 5)

Yes, group mask breaks or full classroom mask breaks are best done outdoors where ventilation and physical distancing are maximized. (RSSL pg. 8)

Are students allowed to wear face shields instead of masks? (Aug. 5)

A face shield may be worn instead of a mask if an individual cannot wear a mask for medical reasons. Face coverings are preferred over face shields, as they provide better containment of small aerosols that can be produced while talking. (RSSL pg. 7)

Are adults in schools required to wear face coverings? (Aug. 5)

Indoors: OAR 333-019-1015 requires schools to ensure that all individuals — including but not limited to staff, contractors, and visitors — wear a mask indoors regardless of vaccination status when: (a) at school during regular school hours; (b) engaged in educational activities such as field trips or off-campus classes during regular school hours; and (c) at school engaged in educational activities outside of regular school hours.

Outdoors: No, per OHA guidance, it is acceptable for both fully vaccinated and unvaccinated people to be outdoors without a face covering. (RSSL pg. 7)

Why is OHA requiring masks in schools? (Aug. 5)

According to OAR 333-019-1015, OHA states “Children are required to attend school, which is a congregate setting where COVID-19 can spread easily if precautions are not taken. Two of the most important tools the state has to control COVID-19 are vaccination and masking. However, currently children under the age of 12 are not eligible to receive the COVID-19 vaccines authorized for emergency use. In order to protect students under age 12, individuals who are not vaccinated, and those with underlying health conditions that make them more susceptible to complications from COVID-19, as well as to minimize the disruption of student education in schools because of exposure to a confirmed or suspected case of COVID-19, requiring universal use of masks inside schools is necessary.”

Is Gov. Brown’s mandate that all staff and students wear masks indoors in accordance with guidance from the CDC? (Aug. 5) 
 
Yes, the CDC recognizes that students should have the opportunity to return to full-time in-person learning in the fall, and the CDC believes that layered prevention strategies are the best way to assure that students can do so. The CDC “recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.” (CDC website) 

What are the physical distancing requirements in schools? (Aug. 5)

OHA and ODE strongly advise that schools support and promote physical distancing by:

• Maintaining at least 3 feet between students to the extent possible
• Considering physical distancing requirements when setting up learning spaces and activities
• Arranging spaces and groups to allow and encourage at least 3 feet of physical distance
• Minimizing time standing in lines and taking steps to ensure that space required between students is maintained by marking spaces on the floor, one-way traffic flow in constrained spaces, etc. (RSSL pg. 14)

When it is not possible to maintain a physical distance of at least 3 feet, it is especially important to layer multiple other prevention strategies, such as wearing face coverings.

How should schools respond to a student’s refusal to wear a face covering at school? (Aug. 5)

When students falter in adhering to your district’s or school’s face covering policy, center grace and patience and reteach the expectation. Refrain from implementing consequences that deny access to instruction as a result of these challenges. Schools and teams should continually provide instruction and positive reinforcement to help all students adapt to the changes in school facilities while ensuring punitive measures are not the methodology to remind, motivate and reinforce healthy practices. 

Remind students (with signage and regular verbal reminders from staff) of the importance of respiratory etiquette. Respiratory etiquette means covering coughs and sneezes with an elbow or a tissue. (RSSL pg. 13) 

Are bus drivers, students, and staff required to wear face coverings on school buses? (July 10)

Yes. The CDC order for mandatory use of face coverings on public transit applies to school buses until lifted by the federal government and it cannot be waived by state or local authorities.

The CDC has provided clarity through the following FAQ:

Are masks required on school buses?
Yes, passengers and drivers must wear a mask on school buses, including on buses operated by public and private school systems, subject to the exclusions and exemptions in CDC’s Order. Operators of school buses should refer to the U.S. Department of Education’s COVID-19 Handbook for additional guidance. A driver does not need to wear a mask if they are the only person on the bus.

The text of the federal order and the CDC guidance is available on the CDC website.

Are there any COVID-19 related classroom capacity requirements? (June 29)

ODE and OHA strongly advise that schools support and promote physical distancing as described below:

• Support physical distancing in all daily activities and instruction maintaining at least 3 feet between students to the extent possible.
• Consider physical distancing requirements when setting up learning and other spaces, arranging spaces and groups to allow and encourage at least 3 feet of physical distance.
• Minimize time standing in lines and take steps to ensure that required distance between students is maintained, including marking spacing on floor, one-way traffic flow in constrained spaces, etc.

Are schools required to assign physical distancing compliance to a particular individual? (June 29)

ODE strongly advises that school communicable disease management plans include a single point-person at each school to establish, implement, support and enforce COVID-19 health and safety measures. This role should be known to all staff in the building with consistent ways for licensed and classified staff to access and voice concerns or needs.

After December 31, 2020, do schools need to provide paid leave pursuant to Families First Coronavirus Response Act? (Jan. 6)

No. The Families First Coronavirus Response Act (“FFCRA”) was signed into law by the President on March 18, 2020. The act provided employees with paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and also provided for paid sick leave under the Emergency Paid Sick Leave Act (EPSLA). As of Jan. 1, 2021, the FFCRA no longer requires covered employers to offer either form of emergency leave. However, schools should review any union contract language regarding obligations that may have been created to provide employees with paid leave.

Although there may be no emergency paid leave obligation under FFCRA, it should be noted that BOLI adopted a rule that specifically allows OFLA leave to be used when the employee is absent from work in order to “care for an employee’s child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.” OAR 839-009-0230(4)(a). This is not a paid leave obligation, but it does create protected leave for an employee.

Additionally, Oregon’s sick time law allows employees to use accrued sick time in the event of a public health emergency for the closure of an employee’s child’s school. ORS 653.616(6). See BOLI’s guidance for more information. Employees also may be able to use general sick leave.

What are the in-person, distance learning, and hybrid instruction options for Summer 2021 and the 2021-2022 school year? (June 29)

For summer school 2021 and the 2021-2022 school year, schools must plan to provide in-person education for all students every day. Schools will make decisions at the local level about closing to in-person instruction in response to COVID-19 outbreaks. State agencies such as OHA and ODE have the authority to close schools to in-person instruction if necessary to respond to a public health risk. 

Are there special rules regarding how a school should maintain employee vaccination records? (Aug. 31)

Under the ADA, employers must keep information regarding the medical condition or history of any employee in separate medical files and treat the information as a confidential medical record.  Employee vaccination records should be stored in a medical file separate from the employee’s personnel file (EEOC COVID-19 Guidance). Additionally, the Oregon Health Authority requires that these records be maintained for at least two years and be provided to the Oregon Health Authority upon request. OAR 333-019-1030  

Are there special rules regarding how a school should maintain student vaccination records? (Aug. 19)

Under FERPA, a student’s health records, including immunization records, maintained by a school, would generally constitute education records subject to FERPA.  As such, the records must be maintained as confidential student education records. DOE COVID-19 FERPA Guidance  

Are student and employee medical records, including vaccination records, that are maintained by the school, protected by HIPPA? (Aug. 19)

Generally, no. HIPAA only applies to schools in very limited circumstances. The U.S. Department of Education and the U.S. Department of Health and Human Services created this Joint Guidance Document that explains HIPAA’s limited applicability to schools. ODE has also provided guidance on this topic. Even though HIPAA does not generally apply to schools, it is important to remember that schools must keep medical records, including vaccination records, confidential under FERPA and the ADA. EEOC COVID-19 Guidance and DOE COVID-19 FERPA Guidance.   

Can staff be asked whether they are experiencing COVID-19 symptoms or have had exposure to someone with COVID-19? (June 29)

Yes, staff can be asked whether they are experience COVID-19 symptoms or have had exposure to someone with COVID-19.

Isolation and quarantine are core components under the authority of public health (LPHAs and OHA) as described in ORS 431A.010, 433.004, 433.441, and 433.443. Schools and districts must cooperate with any LPHA investigations and requirements to protect the public health. LPHAs follow statewide Investigative Guidelines for COVID-19 and other diseases.

Additionally, conducting a risk assessment is required by OAR 437-001-0744(3)(g). OSHA has developed a risk assessment template. 

Can schools release students’ personally identifiable information without consent?

Schools generally need written consent from parents prior to the release of personally identifiable information. Schools are able to provide general, non-personally identifiable information to the community without fear of violating FERPA. For example, schools can tell the community that a student has a confirmed case of COVID-19 without releasing personally identifiable information provided names, ages, and grades are withheld. Schools should use caution if release of this limited information gives the community an idea of the identity of the student. FERPA permits an exception to the release of personally identifiable information when there is a health and safety emergency. Consider using this exception if you are asked to provide names, grades, and ages of students to a public health authority. The United States Federal Government has issued FERPA Coronavirus guidance.  

Can we require employees to disclose medical conditions or provide medical verification?

This is going to depend on the employee’s situation and the severity of COVID-19 in the area. Generally, employers cannot ask “disability-related” questions, but when the pandemic is severe enough to cause a “direct threat,” employers are able to ask additional questions. The EEOC has provided guidance that helps identify which questions can be asked.

What are recovery services? 

Recovery services are educational services meant to address student loss of progress as a consequence of the COVID-19 pandemic. Recovery services are a method for schools to proactively keep students where they would have been educationally if it were not for the disruption caused by COVID-19. 

Are schools required to consider recovery services for students on IEPs? (June 29)

Yes. Schools must notify parents of students on IEPs about recovery service opportunities. Schools must also consider the need for recovery services at initial and annual IEP team meetings, and be proactive about recovery services decision-making, where appropriate. Schools must document decisions made around the delivery of recovery services. 

What do I do if an employee refuses to return to in-person instruction? (June 29)

Ready Schools, Safe Learners Resiliency Framework for the 2021-22 School Year replaces Ready Schools, Safe Learners: Guidance for School Year 2020-21 version 7.5.2 issued on May 28, 2021. The Resiliency Framework may be used for summer school 2021 as well as school year 2021-22.

Under the new guidance decisions of school health and safety reside with school and district officials. School employees must report to work and fulfill their duties, as assigned by the school. If a school employee refuses to return to in-person instruction because of a disability, illness, or other legally protected reason, a school or district should engage in the interactive process under the ADA or allow protected leave as defined under state and federal leave laws. An employee may be eligible for OFLA/FMLA, vacation time, or sick leave. A generalized fear of COVID-19 will not be a justification for most employees to refuse to return to in-person instruction.

However, ODE recognizes that mental health, which encompasses emotional, social, cognitive, and behavioral functioning, is one of the cornerstones of public education for both students and staff.

The guidance states that districts should:

• Devote several days of time and space at the beginning of the school year, and ample opportunities throughout the year for students and staff to connect and build relationships in and out of the classroom.
• Provide ample class time at the beginning of the school year, as well as ongoing time, space, and creative opportunities and outlets (art, music, movement/dance, creative writing, clubs and interest groups etc.) for students and staff to make sense of their experiences, and to process personal and professional stresses, emotions, trauma, and grief.

If you have any questions, contact OSBA attorneys at pacelegal@osba.org.

Can employees use leave to care for their children if their child’s school or daycare closes due to a COVID-19 outbreak? (June 29)

Yes, BOLI recently adopted a rule that specifically allows OFLA leave to be used when the employee is absent from work in order to “care for an employee’s child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.” OAR 839-009-0230(4)(a)

Oregon’s sick time law allows employees to use accrued sick time in the event of a public health emergency for the closure of an employee’s child’s school. ORS 653.616(6). See BOLI’s guidance for more information. Employees also may be able to use general sick leave.

Schools should review CBAs and any applicable contract language regarding additional leave.

Are schools required to provide employees with new leave entitlements under the American Rescue Plan Act? (April 1)

No. The American Rescue Plan Act (ARPA) creates new COVID-19 leave entitlements that employers may choose to offer their employees. Participation is voluntary. Beginning April 1, 2021, the ARPA provides 80 hours of new Emergency Paid Sick Leave (EPSL). The leave is available to employees for the COVID-related reasons described in the 2020 Families First Coronavirus Response Act (FFCRA), and adds new reasons related to:

• waiting for COVID-19 test results after an exposure or when the school requires the employee to be tested;
• getting vaccinated against COVID-19; and
• recovering from COVID-19 vaccination side effects.

The leave may be used between April 1 and Sept. 30, 2021. The ARPA also extends the availability of Emergency Family and Medical Leave (EFMLA or FMLA+). Because EFMLA/FMLA+ is tied to FMLA eligibility, employees working for schools participating in the ARPA program are only entitled to as much EFMLA/FMLA+ leave as they have available FMLA leave in a 12-month period. The daily wage caps remain the same as under FFCRA ($200/day or $511/day, depending on the reason for the leave). Schools that participate in the voluntary leave program under APRA may be eligible for employment tax credits. 

Can district, ESD, and community college boards meet in person or virtually? (June 29)

Yes. Governing bodies can choose how they meet, whether that be in person or virtually.

Do boards have to allow members of the public to participate in virtual meetings? (June 29)

Yes. If a meeting is held by telephone or video conferencing technology or through some other electronic or virtual means, the board must make available a method by which the public can listen to or observe the meeting.

HB 2560 requires that a governing body make available to the public at least one place where, or at least one electronic means by which, the public can listen to the communication at the time it occurs. A place provided for the public may be a place where no member of the governing body of the public body is present.

All regular meeting requirements remain in place, including notice, minutes and accessibility. If the board is voting on any issue, OSBA recommends the chair use a roll-call type of voting process to ensure each member’s vote is accurately captured. Additionally, we recommend that boards explore options to allow the public to provide input to the board and look for ways to remove barriers so that meetings remain accessible to all members of the public.

Do virtual meetings have to be recorded? (June 29)

If the virtual meeting technology used by the school allows for it, meetings must be recorded and the recording must be made available to the public. This requirement does not apply to executive sessions.

How do boards satisfy any requirements for in-person testimony that might be required during a public meeting? (June 29)

HB 4212 and HB 2560 provide that any requirement for in person oral public testimony also needs to be provided by telephone, video or other electronic or virtual means; and if in-person written testimony is allowed, it can be submitted by electronic mail or other electronic means, so that the governing body may consider it in a timely manner.

HB 2560 requires that all public meetings held by boards reasonably provide the general public with an opportunity to access and attend the meeting by telephone, video, or other electronic or virtual means, and to allow oral and written testimony by electronic or virtual means when in-person testimony is allowed.

Do boards still need a quorum to make a decision and has the definition of “quorum” changed? (June 29)

Yes, a board still needs a quorum to make decisions; however, the definition of what constitutes a quorum has changed. HB 4212 states that, “notwithstanding any requirement that establishes a quorum required for a governing body to act, the minimum numbers of members of a governing body required for the body to act shall exclude any member unable to attend because of illness due to COVID-19.”

Can the board hold an emergency meeting regarding COVID-19? (June 29)

Maybe. The official guidance regarding COVID-19 is changing rapidly. A circumstance may arise where a school board needs to make a quick decision, and if the board must make a decision and does not have time to provide 24 hours’ notice, an emergency meeting can be held. When an emergency meeting is held, the school must provide as much notice as the emergency allows, and the reason for the emergency must be documented in the minutes. ORS 192.640. All other regular noticing and public meeting requirements must be followed.

Can the board go into executive session to discuss matters relating to the COVID-19 virus? (June 29)

There is not clear statutory authority allowing the district to go into executive session to discuss matters related to the COVID-19 virus. For that reason, our recommendation is that this discussion be held in open session. The statute that might allow these types of discussions in executive session is ORS 192.660(2)(k) “to consider matters relating to school safety or a plan that responds to safety threats made toward a school.” Again, because it is unclear whether this statute allows the district to go into executive session for this purpose, it is recommended that conversations related to COVID-19 occur in open session.

Public Records: Are we required to respond to public records requests during the closure?

Under normal circumstances, you are required to provide an initial response within five business days of receiving the request and complete the request within an additional ten days. Oregon statute specifies that “any day on which the central administration offices of the district” are closed are not considered business days, so closure days would not count towards the deadline. ORS 192.311(1). Even if the district office is open, you are not required to meet these timelines if “compliance would demonstrably impede the public body’s ability to perform other services” or “the staff or volunteers necessary to complete a response to the public records are unavailable.” ORS 192.329(6) - (7). One of these two may apply in your current situation. Consequently, you may not be bound to the statutory timelines.

This does not mean that you can ignore and forget the request. You should communicate the delay to the requestor if possible and fulfill the request as soon as you have the capability.

Are facial coverings required to be worn by athletes and spectators during athletic practices and events? (Aug. 18) 

Schools must ensure that all individuals, including but not limited to staff, students, contractors and visitors wear a mask indoors when at school during regular school hours, engaged in educational activities such as field trips or off-campus classes during regular school hours, and at school engaged in educational activities outside of regular school hours. 

Students are not required to wear a mask when “engaged in a sport during physical education class such as swimming, other water sports, or a sport where wearing a mask could be a strangulation hazard such as gymnastics or wrestling” or  “practicing or playing a competitive extracurricular sport at any level.” (OAR 333-019-1015).  Although the administrative rules indicate facial coverings are not required for athletes in these limited circumstances, ODE states that masks are “strongly recommended.”  (COSA - OASE Update - Aug. 2, 2021, pg. 17).  
 
Pursuant to OAR 333-019-1015, spectators at indoor sports events must wear masks because the administrative rule states “individuals, regardless of vaccination status, are required to wear a mask, face covering or face shield when in an indoor space.” Spectators may remove their masks if they are eating, drinking, or meet one of the limited exemptions. 

If the school athletics take place outdoors, then the current state mandates do not require athletes and spectators to wear masks. (RSSL pg. 8).

The OSAA has released this guidance. 
 
Note: If a local government's mask laws are more restrictive than statewide laws, then schools district must adhere to whichever law is more restrictive. (OAR 333-019-1015).  Schools are advised to consult with their local governing bodies. 

Does the “10-day drop” rule apply? (June 29) 

How is attendance reported for students receiving on-site instruction? (June 29) 
 
For On-Site Instructional Models, ODE’s pre-pandemic attendance and reporting practices are unchanged.  

A "Day in session" means a scheduled day of instruction during which students are under the guidance and direction of teachers (OAR 581-023-0006(1)(f))  

Session day requirements described in the cumulative ADM manual are unchanged; session days may not be claimed for weekends or holidays or any other day during which a licensed or registered teacher is not available to students. (OAR 581-023-0006(f); ORS 336.010; ORS 187.010) (RSSL pg. 8)  

How is attendance reported for students receiving online instruction? (June 29) 

For remote instructional models, schools and districts must take daily attendance. Attendance should be demonstrated in a set 24-hour window that the school establishes and communicates to families prior to the school year.  The 24-hour window is not required to be from 12:00 a.m. to 11:59 p.m. 

Attendance for all instructional models will be defined to include both participation in-class activities and substantive interaction with a licensed or registered teacher during a school day or substantive interactions with educational assistants, paraprofessionals, and TAPP family advocates that support meaningful learning and/or attend to student mental health and wellbeing.  

Substantive interactions can be evidenced by any of the following or reasonable equivalents:  

• Active participation in a video class;   
• A meaningful series of two-way communications between student and teacher via chat, text message, communication app, or email;   
• A sustained phone call between the teacher or educational assistants/paraprofessionals and the student, or, for younger students, with the parent or guardian of the student. (RSSL pg. 8) 

Do schools have a responsibility to notify parents or guardians of their student’s attendance? (June 29) 

Schools have a foundational responsibility to notify parents or guardians of their student’s attendance. ORS 339.071 remains in place for both in-person and online instructional models. Schools must inform parents or guardians if a student is unexpectedly absent (not pre-excused) by the end of the school day to verify safety of the student. Schools should design systems for both in-person and online educational models that allow the end of the day to fall at a reasonable time for this expectation. (RSSL pg. 9) 

Will districts need to administer state assessments in the 2021-22 school year?  (June 29) 

Yes. School districts are responsible for having a plan for and administering the state assessments to their students as required by state and federal law. (ORS 329.485; OAR 581-022-2100). (RSSL pg. 8)

If a contractor notifies the school that an employee of the contractor has an approved exception to the vaccination requirement, does the school have to accommodate those exceptions? (Sept. 13)
The school is required to provide reasonable accommodations to staff, students and visitors to its property, including contractors. The school is not required to provide the same accommodations for contractors as it does for its employees; what may be a reasonable accommodation for the school’s employees, may not be a reasonable accommodation for contractors. Two potential reasonable steps for contractors who qualify for a medical or religious exception include remote work or unpaid leave while the vaccination requirement is in place. Additionally, according to the Oregon Health Authority, reasonable steps may also include “weekly testing, a fitted N95 mask, additional distancing or a face mask with a face shield.” OHA 3874 School Vaccine FAQ (state.or.us). The contractor as the employer for its employees decides whether their employees are approved for a vaccine exception and determines reasonable accommodations for their employees. That being said, the school has control over its property and can decide whether to impose more stringent health and safety protocols on their property. OAR 333-019-1030(13) specifically states that schools are not prohibited from “having more restrictive or additional requirements…” Schools are advised to enter into a written agreement with its contractors to memorialize the understanding between the school and contractor regarding COVID-19 health protocols including masks and vaccinations. PACE created a sample COVID-19 Contract Addendum to address these issues. Schools are advised to work with their legal counsel or pacelegal@osba.org as they adapt this sample for their use.  

Does PACE have sample contract language to address COVID liability and mask and vaccination requirements for contractors? (Sept. 13)
Yes.  PACE has created a sample COVID-19 Contract Addendum to address COVID-19 liability and mask and vaccination requirements for contractors. This addendum s as well as other waivers, forms and sample language are available on the PACE website. 

Does the vaccine requirement for school staff and volunteers come from a law? (Sept. 10) 
Yes. Oregon’s mandatory vaccine requirement for school staff and volunteers is found in OAR 333-019-1030. Like Oregon state statutes, Oregon administrative rules are laws. See ORS 183.310 and Bronson v. Moonen, 270 Or. 469, 476, 528 P.2d 82, 85 (1974) "Administrative rules and regulations are to be regarded as legislative enactments having the same effect as if enacted by the legislature as part of the original statute." 

Are students required to be vaccinated for COVID-19? (Sept. 10)
At this time, students are not generally required by law to be vaccinated against COVID-19. However, if the student is age 16 or older and is employed by the school or is volunteering at the school and the student has direct or indirect contact with students as part of their employment or volunteer service for the school, the student must be vaccinated. OAR 333-019-1030

Which contractors are required to be vaccinated under the vaccination requirement? (Sept. 10) 
Any contractor who is 16 or older and “who is engaged to provide goods or services to or at a school through any formal or informal agreement, whether compensated or uncompensated…” and “providing goods or services at or for a school that includes direct or indirect contact with students” is required to be vaccinated under the law. Short-term visitors, including individuals making deliveries, are not required to be vaccinated. The rule does not prohibit the school from imposing more restrictive or additional requirements. OAR 333-019-1030  “Direct” and “indirect” contact with students are terms that are not defined by the law, nor is the term “short-term visitors.” The school is advised to consult with legal counsel as it defines these terms.    
 
Are contractors allowed to pursue a medical or religious exception to the vaccination requirement? (Sept. 10)
Yes. OAR 333-019-1030 provides that a school may not employ, contract with or accept the volunteer services of teachers, school staff or volunteers who are teaching, working, learning, studying, assisting, observing or volunteering at a school unless the teachers or school staff are fully vaccinated against COVID-19 or have a documented medical or religious exception. 

If a contractor approves a religious or disability exception to the vaccination requirement for its employees, can the school be involved in deciding the safety precautions that will be put in place to protect unvaccinated teachers, school staff, volunteers and students from contracting and spreading COVID-19 in the school? (Sept. 10) 
Yes. The school has an obligation under the law to take reasonable steps to ensure that unvaccinated teachers, school staff and volunteers are protected from contracting and spreading COVID-19.  This requires the school to take reasonable steps to make sure that third parties, like contractors, who are coming into the school are not spreading COVID-19 at the school. OAR 333-019-1030.  OAR 333-019-1030(13) specifically states that schools are not prohibited from “having more restrictive or additional requirements…”

Are school board members required to be vaccinated against COVID-19? (Sept. 1)
School board members are not required to be vaccinated against COVID-19 unless they are also volunteering in a school. OAR 333-019-1030(3) requires that all teachers, school staff and volunteers who teach, work, learn, study, assist, observe or volunteer at a school to be fully vaccinated against COVID-19, or provide documentation of a medical or religious exception.

Are short-term visitors to the school required to be vaccinated? (Sept. 1)
No. OAR 333-019-1030 does not require “short-term visitors or individuals making deliveries” to be vaccinated.

What is the school’s legal obligation to ensure that unvaccinated staff and volunteers are protected from contracting and spreading COVID-19? (Sept. 1)
OAR 333-019-1030 requires that each school must take reasonable steps to ensure that unvaccinated teachers, school staff, and volunteers are protected from contracting and spreading COVID-19. Two potential reasonable steps for employees who qualify for a medical or religious exemption include remote work or unpaid leave while the vaccination rule is in place. Additionally, according to the Oregon Health Authority, reasonable steps may also include weekly testing, a fitted N95 mask, additional distancing or a face mask with a face shield.” OHA 3874 School Vaccine FAQ (state.or.us)

Are there any exceptions to the vaccination requirement? (Sept. 1)
Yes. Pursuant to OAR 333-019-1030 COVID-19 Vaccination Requirements for Teachers and School Staff, an employee may provide documentation of a medical or religious exception. Schools that grant an exception to the vaccination requirement must take reasonable steps to ensure that unvaccinated teachers, school staff and volunteers are protected from contracting and spreading COVID-19.

What is the process for obtaining a medical exception to the vaccination requirement? (Sept. 1)
Employees may request a medical exception. Medical exception means that an individual has a physical or mental impairment that prevents the individual from receiving a COVID-19 vaccination. A medical exception must be corroborated by a document signed by a medical provider, who is not the individual seeking the exception, on a medical exception request form provided by the Oregon Health Authority. The doctor much certify that the individual has a physical or mental impairment that limits the individual’s ability to receive a COVID-19 vaccination based on a specified medical impairment, and that specifies whether the impairment is temporary in nature or permanent.

What is the process for obtaining a religious exception to the vaccination requirement? (Sept. 1)
Employees may request a religious exception. Religious exception means that an individual has a sincerely held religious belief that prevents the individual from receiving a COVID-19 vaccination. A religious exception must be corroborated by a document, on a religious exception form provided by the Oregon Health Authority, signed by the individual stating that the individual is requesting an exception from the COVID-19 vaccination requirement on the basis of a sincerely held religious belief and including a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice or belief of the individual.

If a school contracts with a community college working with K-12 students, does the community college staff have to be vaccinated under OAR 333-019-1030? (Sept. 1)
A school-based program may not employ, contract with, or accept the volunteer services of school-based program staff or volunteers who are teaching, working, providing care, learning, studying, assisting, observing or volunteering at a school-based program unless the employees or volunteers are fully vaccinated against COVID-19 or have a documented medical or religious exception. A “school-based program" means a program serving children or students that takes place at or in school facilities.

If the community college is providing services at a school facility then those community college representatives working in the school facilities must be vaccinated in accordance with OAR 333-019-1030.

If a community college has community college students performing work, whether paid or unpaid in K-12 buildings, do those community college students need to be vaccinated? (Sept. 1)
Yes. OAR 333-019-1030(3) requires that all teachers, school staff and volunteers who teach, work, learn, study, assist, observe or volunteer at a school to be fully vaccinated against COVID-19, or provide documentation of a medical or religious exception.

Do community college employees who work in health care programs have to be vaccinated? (Sept. 1)
Under OAR 333-019-1030, after Oct. 18, any health care provider or healthcare staff person working, assisting, or observing in a healthcare setting must be fully vaccinated or have provided documentation of a medical or religious exception. Healthcare setting is defined broadly to include hospitals, nursing facilities, assisted living facilities, pharmacies, group homes, health care provider offices, and many other settings where health care services are delivered.

Do students in community college health care programs have to be vaccinated? (Sept. 1)
Under OAR 333-019-1030, after Oct.18, students who are working (whether paid or unpaid), learning, studying, observing or volunteering in a healthcare setting must be fully vaccinated or have provided documentation of a medical or religious exception. Healthcare setting is defined broadly to include hospitals, nursing facilities, assisted living facilities, pharmacies, group homes, health care provider offices, and many other settings where health care services are delivered. 

Are school employees, volunteers and other third parties required to be vaccinated against COVID-19 to work and volunteer in schools? (Aug. 31)
Yes. After Oct. 18, school staff, volunteers, and with few exceptions, anyone else who provides goods or services to a school that includes direct or indirect contact with students must be fully vaccinated against COVID-19 or have provided documentation of a medical or religious exception. On or before Oct.18, school staff and volunteers must provide the school, employer, or contractor with either proof of vaccination showing they are fully vaccinated or documentation of a medical or religious exception. OAR 333-019-1030    

Can students receive the vaccine? (June 29)
According to the Oregon Health Authority, all people in Oregon age 12 and older are eligible to receive the COVID-19 vaccine. Under Oregon law, minors 15 and older may give consent to receive medical treatment, including vaccinations, when provided by a physician, physician assistant, naturopath, nurse, dentist or optometrist (or other professional operating under the license of one of the listed providers). Under OHA guidance, these vaccine providers may not require consent from a parent or guardian to vaccinate someone age 15, 16 or 17. Except for pharmacies, most vaccine locations have oversight by a medical professional on this provider list. Guardian consent is required to vaccinate students ages 12, 13, or 14. The consent requirement does not mandate that a parent/guardian must be physically present when a student gets vaccinated. Written consent may be obtained in advance. If you are interested in offering a COVID-19 vaccine or clinic event for your school, contact your local public health authorities to discuss options for the kind of event you would like to host. OHA and ODE are ready to support schools and districts to offer vaccinations through Fall 2021. (RSSL pg. 11)  

Can qualified school employees administer the COVID-19 vaccine to staff, eligible students, and the community? (Jan. 19)
Yes, but it presents numerous legal issues (personal injury risk, employee privacy, Americans with Disabilities Act requirements). PACE members should review the PACE Communicable Disease FAQ for information about insurance coverage for administering the COVID-19 vaccine. Additionally, there are state and federal laws (HB 4402 and the Public Readiness and Emergency Preparedness Act (PREP), respectively) which may provide liability protection to schools and school staff who administer the COVID-19 vaccine. We recommend you reach out to your legal counsel or PACE Legal for additional information about liability protection matters.

Anyone receiving the COVID-19 vaccine should be asked certain pre-screening questions, which will likely elicit information about a disability and create certain requirements under the Americans with Disabilities Act. If your school is requiring staff to be vaccinated, and either school staff or a third party contracted by the school is administering the vaccine, you are advised to contact either your legal counsel or PACE Legal.

Do schools have insurance coverage or other legal protections if they administer the COVID-19 vaccine to staff, eligible students, and the community? (Jan. 19)
PACE members should review the PACE Communicable Disease FAQ for information about insurance coverage for administering the COVID-19 vaccine. Additionally, there are state and federal laws (HB 4402 and the Public Readiness and Emergency Preparedness (PREP) Act, respectively) which may provide liability protection to schools and school staff who administer the COVID-19 vaccine. We recommend you reach out to your legal counsel or PACE Legal for additional information about liability protection matters.

Can outside organizations use school facilities as vaccine delivery sites? (Jan. 19)
Yes, however such action presents risk to schools. If your school permits an outside organization to use school facilities for COVID-19 vaccine delivery, you should execute this facilities use COVID-19 addendum. This form should be used in conjunction with your standard facilities use agreement forms. These forms as well as other waivers, forms and sample language are available on the PACE website. 

Other than OSHA requirements, are there other safety precautions schools should take with respect to staff? (June 29)

Yes, Ready Schools, Safe Learners Resiliency Framework for the 2021-22 School Year replaces Ready Schools, Safe Learners: Guidance for School Year 2020-21 version 7.5.2 issued on May 28, 2021. The Resiliency Framework may be used for summer school 2021 as well as school year 2021-22. The Resiliency Framework provides safety precautions and advice with respect to school safety.

OHA and ODE strongly advise face coverings for all students in grades kindergarten and up, and all staff when students are inside the building. Certain accommodations for medical needs or disability may be necessary.

OHA and ODE strongly advise that schools support and promote physical distancing as described below:

• Support physical distancing in all daily activities and instruction, maintaining at least 3 feet between students to the extent possible.
• Consider physical distancing requirements when setting up learning and other spaces, arranging spaces and groups to allow and encourage at least 3 feet of physical distance.

Additionally, cohorting is a significant strategy to reduce COVID-19 spread. Cohorting refers to establishing a consistent group of students that stays together for a significant portion of the school day. OHA and ODE strongly advise that schools design cohorts for students to the extent possible.

ODE and OHA strongly advise schools to ensure effective ventilation and improve the indoor air quality in schools by:

1. Increasing the amount of fresh outside air that is introduced into the system
2. Exhausting air from indoors to the outdoors
3. Cleaning the air that is recirculated indoors with effective filtration methods (e.g., HEPA filters) to remove virus-containing particles from the air

Regular handwashing is one of the best ways to remove germs, avoid getting sick, and prevent the spread of germs to others. Washing hands can keep you healthy and prevent the spread of respiratory and diarrheal infections from one person to the next. OHA and ODE strongly advise that schools create protocols and systems to ensure access to soap, water and alcohol-based hand sanitizer with at least 60% alcohol.

OHA and ODE strongly recommend that schools implement COVID-19 testing.

Finally, communicable disease management plans are required under OAR 581-022-2220.

Are any funds available to support worker safety?

Yes, SAIF has just established the $10 million coronavirus worker safety fund to help pay for expenses tied to preventing spread of the virus or to mitigate associated costs. Note that a school district must be a SAIF member to access the benefits.