On August 31, 2021, Governor Wolf announced the Order of the Acting Secretary of the Pennsylvania Department of Health mandating face coverings within K-12 public and private schools and childcare facilities, effective September 7, 2021. But what happens when a student has a medical condition or disability that prevents them from using face coverings?
The Order provides for eight “Exceptions to Covering Requirement,” in Order, Section 3.
Certain requirements of the Exceptions trigger the Civil Rights statutes applicable to all students. In particular, Section 3(B) provides: “If wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability.”
However, the language of the Section indicates that the Exceptions are limited. The Exceptions are introduced with a provision applicable to all of the eight exceptions: “All alternatives to a face covering, including the use of a face shield, should be exhausted before an individual is excepted from this Order.”
Schools should establish a process for parents to request an exemption from the mask mandate.
Upon receipt of such a request, a school team must convene. Upon a parent’s submission of a 3(B) letter, a regular education student becomes “thought to be” exceptional under Section 504 of the Civil Rights Act of 1973, and the 504 processes must be followed for that student. For students already eligible under 504 or the IDEA, the applicable team must convene to review the request for exemption.
The 504 and special education teams have two tasks: the first is to review the 3(B) letter for compliance; the second is to review the student’s needs and evaluate the student or revise the student’s Service Agreement or IEP as appropriate.
The team may accept the 3(B) letter, or it may reject the letter. But in either case, the team has the obligation under Section 504 or the IDEA to consider the information provided by the letter and, evaluate or revise the Service Agreement or the IEP, as appropriate.
The obligations under 504 and the IDEA travel separate and apart from the Order, and school districts should respond to a 3(B) letter as they would whenever a parent provides medical or mental health information or other information about a disability.
Bottom Line for Schools
The masking mandate provides a framework for parents and schools to evaluate whether a student requires an exemption from the Order due to a bona fide disability.
Schools should request appropriate documentation from parents for review by a 504 or IEP Team. As with all disability-related matters, the Team must review the child’s needs and provide appropriate accommodations.
The good news is that schools and daycare centers in Pennsylvania now have a template for the medical excusal that may be submitted by a parent, schools and daycare centers may now require submission of medical or mental health information about a student, and thus schools and daycare centers are better informed and better able to provide for the children in their charge.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.