07/12/2021

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As the spring semester drew to a close and summer began, parents, board members, and educators across Illinois began asking what school operations would look like in the fall.  Even now, as summer is halfway over, we are only beginning to receive updated guidance from the state and federal agencies.

In the morning on Friday, July 9, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its guidance for schools across the country.  One of the key points was a statement that “Students benefit from in-person learning, and safely returning to in-person instruction in the fall 2021 is a priority.”  The CDC also emphasized that “Vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic” and “can help schools safely return to in-person learning as well as extracurricular activities and sports.”  Another key point from the CDC was the statement that:

“Masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated. Consistent and correct mask use by people who are not fully vaccinated is especially important indoors and in crowded settings, when physical distancing cannot be maintained.”

The CDC also recommended that schools “maintain at least 3 feet of physical distance between students within classrooms, combined with indoor mask wearing by people who are not fully vaccinated,” and “layer multiple other prevention strategies” if schools would be unable to maintain such a distance and still fully re-open.  Those other layers of prevention strategies included the many changes seen in 2020, specifically testing, contact tracing, quarantine and isolation, and enhanced cleaning and disinfection.  In addition, the CDC noted that “Localities should monitor community transmission, vaccination coverage, screening testing, and occurrence of outbreaks to guide decisions on the level of layered prevention strategies.” 

Around mid-day on Friday, the Illinois Department of Public Health (IDPH) issued a press release stating that they were “fully adopting” the CDC guidance.  In that press release, IDPH Director Dr. Ngozi Ezike was quoted as saying:

“Our goal is to protect the health of students, teachers, and staff so that in-person learning can resume as safely as possible.  The CDC is right: vaccination is the best preventive strategy. As school board members, parents, teachers and superintendents plan for a return to in-person learning in the fall, we strongly encourage those who are not vaccinated to continue to mask. IDPH is proud to fully adopt school guidance issued by CDC, which is based on the latest scientific information about COVID-19.”

The IDPH noted the major elements of the updated guidance, including that “Masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated,” and recommended “implementing layered prevention strategies (masking, distancing, testing) to protect people who are not fully vaccinated.”

In the same IDPH press release, State Superintendent of Education Dr. Carmen I. Ayala issued the following declaration mandating in-person learning with limited exceptions:

“Beginning with the 2021-22 school year, all schools must resume fully in-person learning for all student attendance days, provided that, pursuant to 105 ILCS 5/10-30 and 105 ILCS 5/34-18.66, remote instruction be made available for students who have not received a COVID-19 vaccine or who are not eligible for a COVID-19 vaccine, only while they are under quarantine consistent with guidance or requirements from a local public health department or the Illinois Department of Public Health.”

Dr. Ayala’s portion of the press release did not directly address the topic of masks.

On Friday afternoon, the Illinois State Board of Education (ISBE) sent an email with a further message from Dr. Ayala announcing the IDPH adoption of the CDC guidance and reiterating the declaration stated in the press release.  However, it also included the following statement: 

“I’ll highlight two major changes here that I know educators and families have been eager to hear: 

1.  Requiring masks only for individuals who are not fully vaccinated. 

2.  Recommending at least 3 feet of physical distance between students within classrooms, but not if this would be a barrier to in-person learning.”

Following that email on Friday afternoon, educators and parents quickly noted a discrepancy regarding the statement on masks.  Where the CDC and IDPH had said that masks “should” be worn by all unvaccinated individuals over age 2, ISBE’s email stated that it would be “requiring” masks for such individuals.

The following afternoon, on Saturday, July 10, 2021, ISBE sent another email, this time entitled “Is masking required in schools?”  Although it lacked a simple yes-or-no answer, the email stated:

“The CDC guidance that Illinois has fully adopted for all K-12 public and nonpublic schools states: ‘Masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated. Consistent and correct mask use by people who are not fully vaccinated is especially important indoors and in crowded settings, when physical distancing cannot be maintained.  

 ‘The CDC continues to recommend masking and physical distancing as key prevention strategies. However, if school administrators decide to remove any of the prevention strategies for their school based on local conditions, they should remove them one at a time and monitor closely (with adequate testing through the school and/or community) for any increases in COVID-19 cases. Schools should communicate their strategies and any changes in plans to teachers, staff, and families, and directly to older students, using accessible materials and communication channels, in a language and at a literacy level that teachers, staff, students, and families understand.’

 ‘Schools should work with local public health officials to determine the prevention strategies needed in their area by monitoring levels of community transmission (i.e., low, moderate, substantial, or high) and local vaccine coverage, and use of screening testing to detect cases in K-12 schools … A school in a community with substantial or high transmission, with a low teacher, staff, or student vaccination rate, and without a screening testing program should continue to require masks for people who are not fully vaccinated.’”

As of the publication of this article, no other guidance documents have been updated by IDPH or ISBE.  During the 2020-2021 school year, these state agencies provided numerous and detailed guidance documents FAQs, and quarantine/isolation protocols.  We expect that they will revise those documents or provide new ones for use during the 2021-2022 school year as well.  Consequently, this area may evolve rapidly.   Whitt Law attorneys James R. Dougherty and Brian R. Bare are available to discuss these and any other questions that you may have regarding the impact of state and federal guidance upon Illinois school districts and plans for the return this fall.  Districts are advised to consult their attorneys before implementing definitive plans.