Year-end school events often present legal landmines. Those annual challenges are now heightened by COVID-19. With the recent changes to indoor and outdoor gathering restrictions, many school officials have asked whether prom or a commencement ceremony is possible this year and, if so, what those year-end events might look like.
1. What gathering restrictions currently apply to year-end school events?
On April 16, 2021, the Michigan Department of Health and Human Services (MDHHS) issued an updated order on face masks and gatherings. The new order is effective from April 19, 2021 through May 24, 2021, meaning a new MDHHS order regulating those topics may be in place for school events occurring after May 24.
Under the current MDHHS order, indoor non-residential gatherings must not exceed 25 people and outdoor non-residential gatherings must not exceed 300 people. All indoor and outdoor gatherings must be designed in a manner that encourages and maintains physical distancing and ensures that persons not part of the same “group” maintain six feet of distance from one another to the extent possible.
2. Does the MDHHS order define “group”?
No. A “gathering” occurs when at least two people from more than one household are present in a shared space, but the MDHHS order does not define the term “group.” MDHHS issued specific guidance on end-of-year events on April 27, 2021. The guidance clarifies that schools can cohort students into groups of six or fewer for end-of-year events like prom. Students within a cohort could dance without social distancing (but with masks), travel to and from the event together, and eat at the same table. Each cohort must remain six feet from other cohorts and avoid intermingling with others from outside of their cohort for the duration of the event. MDHHS’ End–of-Year guidance is available here.
We also recommend schools consider limiting attendance at prom to school students, staff, and necessary volunteers and discouraging any visitors.
3. Do different gathering restrictions apply to “entertainment and recreational facilities”?
Yes. One exception to the above-listed gathering limits applies to “entertainment and recreational facilities,” such as auditoriums, arenas, concert halls, performance venues, stadiums, and “the like,” all of which could serve as potential prom or graduation venues. Note, however, that gathering limits that apply to entertainment and recreational facilities differ among facility types. For example:
The April 27th MDHHS guidance confirms that capacity limits, regardless of the facility, include all participants in attendance at the event, including students, guests, staff, and volunteers.
4. Has MDHHS clarified whether the gathering restrictions for entertainment and recreational facilities apply to schools?
No. In a FAQ, MDHHS opines that “school-sponsored events open to the public” like band/choir concerts, athletic events, and performing arts events, are subject to the entertainment and recreational facility gathering limits. Prom is unlikely to be considered “open to the public.” Depending on the limits your school sets on graduation attendance, graduation could be subject to the gathering restrictions for entertainment and recreational facilities per that FAQ. If your school applies the entertainment and recreational facility gathering limits for a particular event, the event must be held in a true “entertainment and recreational facility” at your school (i.e., an auditorium, performance venue, sporting venue, or theater).
5. Can our school hold an event off-site at an entertainment and recreational facility?
Yes. Per the MDHHS order, “entertainment and recreational facility” specifically includes auditoriums, cinemas, concert halls, performance venues, sporting venues, theaters, bingo halls, and bowling centers, among other venues. Your school may hold an event at an off-site venue that has more space to accommodate additional participants. Remember, however, prom is a school-sponsored event with the school’s name attached to it. Even if prom is held off-site, the MDHHS order obligates an event’s “organizer,” or those “responsible for” an “organized event,” to ensure gathering limits, social distancing, face mask, and mitigation measures are followed at the event.
6. What social distancing requirements apply at year-end events?
As noted, all gatherings must be designed in a manner that encourages and maintains physical distancing and ensures that persons not part of the same “group” maintain six feet of distance from one another to the extent possible. As noted above in Question 2, the MDHHS order defines the term “household,” but does not define the term “group.” The MDHHS April 27th End-of-Year Guidance, however, specifically allows students to attend end-of-year events in “cohorts” of up to six students, as long as each cohort remains six feet away from all other cohorts and students from different cohorts do not intermingle.
Given these restrictions, schools will need to think “outside the box” and “inside the cohort” when planning prom this year. Allowing large numbers of students to dance together is not consistent with the letter or intent of the MDHHS order or guidance. Up to six masked students within a cohort are permitted to dance together without observing social distancing requirements, but each cohort must be at least six feet from all other cohorts.
For commencement, consider designated seating areas for each household attending the ceremony. School officials should ensure that the graduates and participants are appropriately distanced throughout the ceremony. Consider a “contactless” graduation, where the graduate walks across the stage, the school official sets the graduate’s diploma on a table, then steps back as the graduate walks past to pick up the diploma. Handshakes, fist bumps, hugs, and other physical contact that would prevent the school official and graduate from maintaining six feet of physical distance should be avoided during the ceremony. If your band or choir traditionally performs at the commencement ceremony, school officials should take steps to implement safe COVID-19 practices for those performing. Remember, regardless of where or how you choose to conduct your commencement ceremony, schools must design an event that encourages participants and attendees to socially distance and stay six feet apart.
7. Can we allow students to eat at prom or other year-end activities?
If food or drinks are consumed at prom or other end-of-year events, additional rules apply. Assuming that a year-end event is held applying the limits for entertainment and recreational facilities, the MDHHS order states, “[c]onsumption of food or beverages is permitted only where patrons are seated, groups of patrons are separated by at least 6 feet, no more than 6 patrons are seated at a table, and groups of patrons do not intermingle.” Thus, buffet or snack tables, punch bowls, and other “strolling meal” events are not permitted under the MDHHS order.
8. Are face masks still required at prom and graduation?
Yes. The MDHHS order still requires face masks be worn at any gathering, indoors or outdoors. The April 27th MDHHS guidance requires face masks be worn even within a “cohort” group of students. We recommend notifying students and parents in advance that anyone attending prom, graduation, or other year-end activities must wear a face mask at all times. Schools may decide to live-stream these events so that those who cannot medically tolerate face masks or choose not to wear them can watch remotely.
9. Can we require a COVID screening or a negative COVID test to participate in prom or graduation?
Because participating in prom is a privilege (not a right), schools have greater latitude to require monitoring or temperature checks as a condition of entry into prom. School officials may require that parents/ guardians (or students aged 18 years or older) agree to perform a home screening for COVID-19 symptoms and submit a school-provided form documenting the screening results.
Schools may also require students to submit to temperature checks and answer a series of screening questions about symptoms at the door as a condition of prom entry or require that students submit to rapid tests before being allowed to enter. Schools should also keep a record of attendees at these year-end events in case contact tracing is necessary.
If your school intends to administer temperature checks, conduct symptom screening, or conduct rapid testing at the door, we recommend (as with breath alcohol tests) including language directly on prom tickets stating that students consent to temperature checks, symptom screening, or rapid testing as a condition of entry into prom. Advance notice of these requirements will minimize problems on the big day.
Like prom, participation in a graduation ceremony is a privilege, not a right. We recommend, however, that any conditions to attending commencement be communicated to families in writing well in advance. Because it is currently unknown what, if any, state or local COVID-19 restrictions will be in place in June, that advance notice should contain the caveat that any conditions of entry are subject to change to comply with state or local requirements. Although participation in a commencement ceremony is a privilege that may be revoked, schools may not withhold a student’s diploma if the student has met all graduation requirements.
In addition to MDHHS orders, school events must be held in compliance with any applicable local government or health department orders. School officials must ensure that prom, commencement, and other year-end events comply with all epidemic orders then in effect. Accordingly, school officials should: (1) make clear to students and parents/guardians that whether or how an end-of-year event may occur is subject to evolving circumstances, (2) closely monitor for and review any new face mask and gathering orders or guidance, and (3) work with local health departments and government officials when planning year-end events to ensure compliance with all applicable orders.
Being familiar with the legal issues surrounding year-end events will help ensure a smooth finish to this (hopefully) once-in-a-lifetime school year. Regardless of whether your school chooses to host year-end activities in-person, virtually, or not at all, we commend Michigan’s school officials for doing an outstanding job of navigating this most unusual school year.