In mid-July, House Bill 244 was signed into law, with the law effective on October 13, 2021. The new law states that a public school:
Cannot require an individual to receive a vaccine that has not received full FDA approval, which currently includes all COVID-19 vaccines. Based on information currently available, likely none of the current COVID-19 vaccines will have full FDA approval - as opposed to FDA Emergency Use Authorization - prior to the start of the 2021-2022 school year.
Cannot discriminate against someone who has not received the vaccine, including requiring that person to “engage in or refrain from engaging in activities or precautions that differ from the activities or precautions” from those who are vaccinated.
The law’s anti-discrimination language will have a significant impact on schools, and require that decisions be made on the basis of something other than vaccination status, if full FDA approval is not granted by the bill effective date, October 13, 2021. This will likely result in an all-or-nothing and/or one-size-fits-all approach to certain health and safety precautions for groups of students, including the current consideration of masks. Again, both vaccinated and unvaccinated individuals must be treated the same starting October 13, unless full FDA approval is granted.
With respect to masking, schools should keep in mind that this issue will likely remain fluid, like many issues during the COVID-19 pandemic. Currently, there is a CDC order in place that requires the wearing of masks by people on public transportation conveyances, including school buses. And so, schools should anticipate mandating masks on buses unless and until this order is expires; there is currently no expiration date stated in the order. Additional guidance from the CDC regarding masks on buses is available here, which was echoed in recent Ohio Department of Health Guidance.
Please note state and federal agencies have provided guidance to schools regarding masks for the 2021-2022 school year. The Ohio Department of Health on July 26 announced recommended protocols for the upcoming 2021-2022 school year, with new guidance published July 27. The state will not be issuing a universal mask mandate. Instead, ODH is strongly recommending that those who did not get the vaccine wear a mask while in the academic setting. ODH also stated that, in general, mask use is not necessary when outdoors; however, particularly in areas of substantial to high transmission, ODH recommends that people who are not fully vaccinated wear a mask in crowded outdoor settings or during activities that involve sustained close contact with others who are not fully vaccinated.
However, it is important to note that the ODH guidance on masks that recommends a school should differentiate between those who are vaccinated and those who are not cannot be fully implemented in Ohio public schools starting October 13, if the FDA does not give full approval to the vaccines. That is because doing so would differentiate between those who are vaccinated under emergency authorization and those who are not, which is prohibited by House Bill 244.
On July 27, the CDC also issued new guidance on mask wearing in schools that conflicts with ODH recommendations. While previous CDC guidance stated that masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated, the new CDC guidance recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.
The American Academy of Pediatrics took the same approach as the new CDC guidance, recommending that all students older than 2 years and all school staff should wear face masks at school (unless medical or developmental conditions prohibit use). Among other reasons, the AAP made this recommendation given the potential difficulty in monitoring or enforcing mask policies for those who are not vaccinated.
Schools should consider that decisions on masking may have a direct impact on quarantine decisions during the school year. The Ohio Dept. of Health’s guidelines on quarantines are available here. According to ODH’s ongoing recommendations, in summary, fully vaccinated students and adults possibly exposed to COVID-19 do not have to quarantine, unless symptoms develop. However, unvaccinated students and adults may continue to attend in person without quarantine only if the school has documented COVID-19 prevention policies; the exposure occurred within a classroom environment or while on required school transport (e.g., school bus); the person with COVID-19 and any associated contacts were wearing face masks that covered their nose and mouth at all times; distancing between students is maximized in classroom and other settings, ideally a 6-foot distance, but 3 feet is acceptable; and they remain symptom-free.
As with the mask guidance, schools will also have to face the issue of carrying out quarantines under the anti-discrimination mandates of House Bill 244, again, if full FDA approval is not granted for the vaccines by October 13.