School officials are making many difficult decisions heading into the 2020-21 school year. One area that has generated many questions is how schools should implement the Michigan Return to School Roadmap’s student face covering guidelines.
With limited exceptions, schools in Phase 4 must require face coverings for: (1) all students when on a school bus and in hallways and indoor common areas; (2) students in grades 6 and up when in classrooms; and (3) students in grades K-5 unless those students remain with their classes throughout the day and do not come into close contact with students in another class. In Phase 5, student face covering requirements shift from “required” to “strongly recommended.” Any school that does not include a “strongly recommended” provision in its COVID-19 Preparedness Plan should be able to articulate why it is making that choice.
If a student cannot medically tolerate a face covering or is unable to independently remove the face covering, then the student is not required to wear a face covering regardless of the applicable Phase. While neither the Roadmap nor Executive Order 2020-142 expressly require documentation before granting a medical exemption, we recommend that in most circumstances schools use a medical exemption form, particularly because a medical exemption request may trigger obligations under Section 504 of the Rehabilitation Act of 1973 or the Individuals with Disabilities Education Act. This form will: (1) ensure that parents understand the risks if their student does not wear a face covering, (2) require that a medical professional specify the medical condition or impairment that prevents the student from wearing a face covering, and (3) provide for alternative COVID-19 mitigation measures if the exemption request is granted. Thrun Law Firm has created a “Student Face Covering Medical Exemption Request” form that includes all of this information. Please contact a Thrun attorney to purchase the form.
Schools also must consider whether students with disabilities require modifications to school rules and requirements, including face covering requirements. For students who already have IEPs or Section 504 plans, those teams may need to decide whether an exemption or modification of the face covering requirement is necessary due to the student’s disability. Like any accommodation request, those decisions should be made and documented through the team process. While medical information may be helpful in making those decisions, including the information received when a medical exemption request is made, IEP and Section 504 Teams cannot refuse such an accommodation request simply because a parent did not provide medical information to school officials.
If the student’s IEP or Section 504 Team determines that a disability-related reason exists that requires an exception to the face covering requirement, the exception should be made. In those situations, a medical exemption form is not required.
School officials also should be aware that a medical exemption request may trigger the school’s “child find” obligations. If the information accompanying a mask exemption request causes school officials to suspect that the student may be a student with a disability, school officials must seek consent to evaluate the student under either Section 504 or the IDEA.
If a parent requests that a student not wear a face covering for religious reasons, school officials must analyze the request under the First Amendment’s Free Exercise Clause.
This analysis requires that the parent or student establish a sincerely held religious belief that would be violated by wearing a face covering. In this situation, school officials can request that a parent or student articulate what religious belief wearing a face covering violates. School officials may be aware of information that refutes the “sincerity” of that belief (e.g., whether the student has been seen wearing a scarf or gaiter covering the student’s nose and mouth). If the school imposes a face covering requirement despite a student’s sincerely held religious belief, the school must be able to show that the requirement is the least restrictive means of serving a compelling governmental interest (e.g., safeguarding the health and welfare of students and staff during a pandemic). Any decision to deny a religious exemption request should be handled carefully.
First Amendment cases are extremely fact-specific and can create legal exposure for a school if not handled properly. If you have questions about a religious exemption to your school’s face covering requirement, please contact legal counsel.
Student Refusal to Wear Face Coverings
To help implement face covering requirements, we recommend that schools amend the student code of conduct and dress codes to include the face covering requirement. By making those changes, schools could consider disciplining a student for noncompliance in the same way it would for other violations of the student code of conduct and dress code.
If a student with a disability is able to medically tolerate a face covering and there are no disability-related exceptions to the face covering requirement for that student, the student with a disability may be treated the same as all other students if he or she refuses to follow the face covering and social distancing rules. Remember, however, that students with disabilities are subject to additional disciplinary safeguards and protections, including, as applicable, manifestation determination reviews.
Finally, if a student with a disability chronically refuses to wear a face covering or comply with social distancing rules and no disability-related exemptions apply to that student, schools should consider whether to convene an IEP or Section 504 Team meeting to address the student’s noncompliance including whether the noncompliance should be addressed through positive behavior interventions and supports.
Consult with Local Health Department
When developing and implementing face covering requirements for students, school officials also should consider municipal regulations, local health department orders, CDC Guidance, NIH Guidance, and other pronouncements supporting face covering regulations to control the spread of COVID-19. Informing students and parents about specific federal, state, or local guidance may help with compliance.