mask and vaccination laws and the school board's role
TRANSCRIPT
Mask and Vaccination Laws and the School Board's Role
Presenters
Haley Percell, OSBA Chief Legal Counsel
Elliot Field, OSBA Senior Assistant Legal Counsel
Callen Sterling, OSBA Assistant Legal Counsel
Janet Avila-Medina, OSBA Board Development Specialist
Alex Pulaski, OSBA Director of Communications
Agenda
Mask Law
Vaccination Law
Religious and Disability Exceptions
The Superintendent/Director’s Role
The Board’s Role
Communication Services
COVID-19 Frequently Asked Questions
OSBA maintains a frequently asked
questions page on its website which is
located here.
OHA Schools and School-Based
Programs Vaccine Rule FAQ
Oregon Department of Education
ODE's Ready Schools, Safe
Learners
ODE's October 4, 2021, Educator Vaccine FAQ
Update
COVID-19 Oregon’s State of Emergency
ORS 401.165 grants the governor the authority to declare a state of emergency “after determining that an emergency has occurred or is imminent.” On March 8, 2020, Gov. Brown found that the novel coronavirus had created a threat to public health and safety, and constituted a statewide emergency and as a result she declared a state of emergency pursuant to Executive Order No. 20-03. Gov. Brown has subsequently extended the state of emergency. The most recent such extension is found in Executive Order 21-15, which is in effect through Dec. 31, 2021.
When the governor declares a state of emergency, she is authorized pursuant to ORS 401.168 to have “complete authority over all executive agencies of state government and the right to exercise, within the area designated in the proclamation, all police powers vested in the state by the Oregon Constitution.”
Do the mask and vaccination requirements come from laws?
Yes, Oregon’s mandatory vaccine requirement for school staff, contractors and volunteers is found in OAR 333-019-1030.
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."
Read about OHA's legal ability to adopt rules to control communicable diseases in an explanatory letter from OHA Director Patrick Allen.
Legal Challenges?
No currently pending legal challenges to the laws impacting schools.
To date, no challenges to the COVID-19 emergency rules have been successful, see Elkhorn Baptist Church v. Brown, 366 Or. 506, 466 P.3d 30 (2020).
Mask Law
Current Law – OAR 333-019-1015
Staff, students, contractors, and visitors must wear masks while indoors: At school during regular school hours;
Engaged in educational activities such as field trips or off-campus classes; and
At school engaged in educational activities outside of regular school hours
Mask-wearing is not required while: eating, drinking, sleeping
playing a musical instrument that requires use of the mouth
engaged in a sport during PE where wearing a mask could be a strangulation hazard (e.g., gymnastics, wrestling)
in a private individual workspace
Vaccination Law
Current Law – OAR 333-019-1030
After Oct. 18, 2021, teachers, school staff, and volunteers may not teach, work, learn, study, assist, observe, or volunteer at a school unless they are fully vaccinated against COVID-19 or have a documented medical or religious exception.
Current Law – OAR 333-019-1030
On or before Oct. 18, 2021, teachers, school staff and volunteers must provide their school, employer or contractor with either:
(a) Proof of vaccination showing they are fully vaccinated; or
(b) Documentation of a medical or religious exception.
Is the governor going to extend the Oct. 18 deadline?
The vaccine requirement for schools comes from an administrative rule issued by the Oregon Health Authority.
The OHA rule contains the Oct. 18 so OHA would have to change their rule in order to extend the deadline.
OSBA is not aware of any plan for the governor or OHA to extend the Oct. 18 deadline for schools.
Religious and Medical Exceptions
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 form prescribed by the Oregon Health Authority, certifying 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 diagnosis, and that specifies whether the impairment is temporary in nature or permanent.
Medical Exception Form
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 form prescribed 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.
Responsibility to Unvaccinated Staff and Volunteers
Schools that grant religious/medical exceptions must take reasonable steps to ensure that unvaccinated teachers, school staff and volunteers are protected from contracting and spreading COVID-19.
Reasonable Steps
Remote work Unpaid leave OHA states in its FAQ that “reasonable steps” may
also include weekly testing, a fitted N95 mask, additional distancing, or a face mask with a face shield
FAQ: Who makes exception decisions?
The Superintendent/Charter Director or designee
If the school has a human resources director that individual is likely involved in the decision-making
The same process is used for making vaccine exception decisions as is used for making all other disability and religious accommodation decisions
The Superintendent/Director’s Role
Superintendent/Director’s Responsibilities (or Designee)
Discuss compliance plan with the boardDiscuss
Discuss compliance plan with human resources and other school administrators Discuss
Ensure that staff are provided with written notice regarding the law and the school’s plan to comply with the lawEnsure
Ensure school staff have provided proof of vaccination status by Oct. 18Ensure
Ensure vaccination exceptions have been reviewed and approved or denied by Oct. 18Ensure
Ensure staff with approved exceptions have been provided with reasonable accommodationsEnsure
Superintendent/Director’s Responsibilities (or Designee)
Take reasonable steps to ensure that unvaccinated teachers, school staff and volunteers are protected from contracting and spreading COVID-19
Make termination recommendations to the board when appropriate
Termination of non-licensed staff as appropriate
Consult with legal counsel
Consult with PACE legal services when appropriate [email protected]
PACE Legal Services and Employment Termination Deductible
$25,000 employment termination deductible is waived if:• School contacts PACE preloss 72 hours
or more prior to termination; and• Consults with a PACE preloss attorney
regarding the termination
Free legal service
Superintendent-Board Communications regarding the Mask and Vaccination Requirements
One-on-one conversations
Open public meetings
Contact board development for assistance, Janet Avila-Medina [email protected]
The Board’s Role
Responsibilities of the Board
Charter Charter school employees may have different procedures--check your charter agreement with the district, employment contracts and consult with legal counsel
Decide Decide termination appeal hearings of classified staff
Make Make termination decisions for licensed teachers and licensed administrators
Hear Hear termination recommendations from the Superintendent/Director at a board hearing
What is the Board Chair’s Role Prior to a Termination Hearing?
Confirm with the board secretary and/or superintendent that the employee has received written communication establishing the hearing procedure—we have a hearing procedure form letter [email protected]
Confirm with the board secretary and/or superintendent that the employee has received written communication informing them that the hearing will take place in executive session unless the employee chooses that the hearing take place in open session—we have form letters [email protected]
Confirm with the board secretary and/or superintendent that the meeting has been properly noticed with an open session scheduled to follow any executive session for voting purposes
Sample Board Meeting Notice/Agenda Language
Executive session: Pursuant to ORS 192.660(2)(b), the [insert name of school] school board will hold an executive session to consider the dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member or individual agent who does not request an open hearing. Open session: The board will vote in open session on any superintendent recommendations made in executive session
What is the Board’s Role in a Termination Hearing?
Confirm that prior to the board hearing, the employee received notice of the vaccination/mask
requirements
For terminations relating to failure to provide proof of vaccination, confirm that the employee has
not provided proof of vaccination as required by the law and
confirm that the employee does not have an approved exception
For terminations relating to failure to wear a mask, confirm that the employee is refusing to wear a
mask as required by the law
If the employee has failed to comply with their legal requirements under the
vaccination and/or mask laws, the board should uphold the superintendent’s termination
recommendation
The board votes in open session—no employee names in open
session
Termination letter signed by board chair—contact
[email protected] for a form letter
Sample Termination Motion Language
“I move to accept the superintendent’s recommendation to terminate the employment of the employee just discussed in executive session. The employment termination is effective [insert date].”
Special Rule for Contract Teachers
In most instances, teachers who have reached contract status with the district must be provided with a letter 20 days in advance of the board hearing
This requirement might not apply to all charter school teachers —check your charter agreement with the District, employment contracts and consult with legal counsel
What happens if the school board chooses not to follow the law?
Insurance policies generally do not provide insurance coverage to entities and individuals who intentionally violate the law
Personal liability for board members and liability for the school
Fines assessed against the school and individuals
Communication Services
Communication Tips for Board Members
The leadership of the school board and
superintendent/director is critical and requires a
cohesive approach based on best practices
Center your messaging on what is best for students
Ensure that your message emphasizes that you are following state directives,
not setting new boundaries or making a political
“statement”
Allow your superintendent or other designated
spokesperson to continue to be the district’s voice
and face
Make sure your district maintains a unified public
message
Promote messages that are factual and supported
by your full leadership team
Communications Services
As part of PACE’s service to members, our team is here to help you during a crisis. We can guide your communication efforts by:
Crafting your message
Assisting with internal and external communications
Advising on dealing with the media and community concerns
OSBA Communication Resources
Mask talking points for board members
Social media use during a crisis
COVID-19 crisis communication
Mask and Vaccination Laws
Resource
Alex Pulaski, communications
director, [email protected]
Student Vaccines?
QUESTIONS?LEGAL QUESTIONS:
COMMUNICATION QUESTIONS: [email protected]
BOARD DEVELOPMENT QUESTIONS: [email protected]