(This FAQ was developed by the NJPSA Legal Team, Government Relations Team, and LEGAL ONE.)
As schools reopen for the 2021-2022 school year, NJPSA members will face many challenges in safely operating their schools. The continued threat to public health from COVID-19 has led Governor Phil Murphy to sign two recent Executive Orders in August. The first, Executive Order 251 concerns a mandatory mask wearing policy applicable to all preK to 12 public and private school settings. Executive Order 253, effective October 18, 2021, establishes a statewide policy concerning employee vaccination or testing in order to prevent the spread of COVID-19. The announced purpose for these policies is to keep our schools open for in-person learning.
Additionally, the NJ Department of Education (NJDOE) and US Department of Education (USDOE), the Center for Disease Control (CDC) and NJ Department of Health (NJDOH) have issued guidance and informational materials concerning school reopening. The following Frequently Asked Questions (FAQ) document is a compendium of member questions that NJPSA staff have been responding to in recent weeks concerning school reopening and operations for the 2021-2022 school year. Although we are still awaiting more detailed guidance from the NJDOE and NJDOH on the new vaccination or testing policy, NJPSA will continue to update this FAQ as this information becomes available. New information will be easily identified with the notation “(NEW)” at the start of the question/answer, and updated information will be marked with “(UPDATED)” to help quickly identify the FAQs that warrant attention.
Vaccination
Does Governor Murphy’s most recent Executive Order 253 require school personnel to be vaccinated?
No. Executive Order 253 from Governor Murphy gives school personnel the option to choose to either be “fully vaccinated” by October 18, 2021, or to be tested once or twice weekly.
Can districts require staff members to be vaccinated?
Yes. This is subject to both medical and religious exemptions. Those staff members who are exempted will still have to be tested as per Executive Order 253.
What does it mean to be “fully vaccinated?”
The staff member must be two weeks out from their final vaccination in either a single or two-dose series of vaccinations to be considered “fully vaccinated.” For the Pfizer or Moderna vaccines fully vaccinated means having received two shots, whereas, for the J&J vaccine, it means having received one shot.
Does this apply to all school personnel, part-time or full-time?
Yes. This includes substitute staff members and bus drivers, as well as school volunteers and contractors who have a regular presence in the school building and/or grounds.
Can a district request to see the staff member’s proof of COVID vaccination?
Yes. However the district must maintain confidentiality of the vaccination record.
Does it violate HIPAA (Health Insurance and Portability and Accountability Act) for a district to request to see the staff member’s COVID test results?
No. HIPAA generally applies to health care providers, health plans, and entities doing business on behalf of these organizations. It typically does not include educational entities. However, educational entities are bound by other Privacy Laws that do require medical records of staff members to be kept confidential and only disclosed on a “need to know” basis.
Can parents and/or guardians see confirmation that staff members have been vaccinated?
No. The Americans with Disabilities Act (ADA), the New Jersey Law Against Discrimination (NJLAD), and other regulations require that vaccination results should not be made public.
Can parents and/or guardians request that their child only be assigned to a classroom in which the teacher has been vaccinated?
No. This would reveal the vaccination status of the teacher.
Can the district reveal general information about the staff’s overall vaccination rate?
Yes. However, this information cannot reveal an individual’s vaccination status.
Who pays for the vaccination?
The vaccination is free, though your insurance carrier may be billed by the State to offset the cost.
Can districts require students who are 12 and older to be vaccinated?
Yes. However, this is a local decision. To date, the only school district that has required the vaccination of students is the Hoboken School District. See Link to NJ.com Article.
Can districts require staff members to be vaccinated?
Yes. However, this is subject to both medical and religious exemptions. PERC recently issued an Order removing the temporary blockage of a township’s mandatory vaccination policy for its employees. See Link to PERC Order.
Information about the vaccine and possible side effects can be found at:
https://covid19.nj.gov/index.html
https://www.cdc.gov/vaccinesafety/index.html
https://coronavirus.jhu.edu/vaccines
https://www.chop.edu/centers-programs/vaccine-education-center
COVID-19 Testing/Quarantines
Can districts require unvaccinated staff members to be tested?
Yes.
Does the testing mandate in lieu of vaccination apply to all staff, part-time and full-time?
Yes. This includes substitute staff members and bus drivers, as well as school volunteers and contractors who have a regular presence in the school building and/or grounds.
How often will you have to be tested?
Executive Order 253 requires testing once or twice a week if you choose to not be vaccinated.
Who decides whether testing will be once or twice a week?
It will be up to your district to decide whether testing should be once or twice weekly, but testing at least once a week is required under the Executive Order.
Can a school district require more than two tests a week?
Yes. Executive Order 253 only provides a minimum floor for the required number of tests. Your board of education could choose to require a greater number but not less than once a week.
Where will the test be given?
Testing may take place onsite in the school district. If testing is performed offsite, the employee will have to provide proof of testing.
Who pays for the testing?
We anticipate that money will be made available to cover the cost of testing. Governor Murphy announced that federal ESSER (Elementary and Secondary School Emergency Relief) funds and state funds will provide for a statewide testing program offered by the NJ Department of Health to school districts. We will supplement this FAQ when we receive further guidance.
If you decide not to be vaccinated, can you refuse to be tested?
No. While Executive Order 253 does not constitute a vaccine mandate, in the absence of full vaccination, it does mandate testing at least once or twice a week in order to provide early detection to help prevent the spread of the coronavirus.
Can a staff member be disciplined for refusing to be tested if the staff member remains unvaccinated?
Yes, a staff member can be disciplined for refusing to comply with the district’s testing policy, subject to the staff member’s rights of due process. At a minimum, this due process should consist of notice of what can happen in the event of a refusal to test, as well as the staff member’s right to set forth his/her reasons for not being tested. As this is now a condition of employment, refusing to take the vaccine or undergo weekly testing can be viewed as insubordination. Any NJPSA member in this situation should contact the NJPSA Legal Department.
Are testing protocols subject to negotiations?
The minimum testing requirement is not subject to negotiations. However, testing beyond the minimal state requirement of once or twice weekly may be subject to the collective bargaining process. Moreover, the impact from the testing requirement on a local association is subject to collective negotiations.
Can parents see the test results of staff?
No. Employers must maintain confidentiality of the test results. The Americans with Disabilities Act (ADA), the New Jersey Law Against Discrimination (NJLAD), and other regulations require that test results should not be made public.
If a staff member tests positive, can the district require the staff member to quarantine?
Yes.
Should other staff members and/or students be notified of the positive test?
Yes. Those identified as close contacts through contact tracing should be made aware of their potential exposure without revealing the identity of the individual who tested positive. Notifications beyond those deemed to be close contacts may violate privacy rights.
If a staff member is required to quarantine either because the staff member has tested positive or because someone in the staff member’s household has tested positive, will the days of quarantine be counted as sick days?
The short answer is Yes. However, if the positive COVID test arises from being at work in school or for work related activities, then the positive test may become a worker’s compensation matter in which case, N.J.S.A. 18A:30-2.1 provides that the staff member must receive his full salary during the leave without resort to sick days. Again, this would be dependent on the positive COVID test arising out of and in the course of the staff member’s employment.
Masks
Is there a mask mandate for NJ schools?
Yes. Effective August 9, 2021, Executive Order 251 requires the wearing of masks for all indoor activities at all public and private schools. This applies to students, staff and visitors.
Is there a mask mandate requiring students to wear masks on the school bus?
Yes. There is a federal order requiring masks on all transportation, including school buses, that remains in effect. Executive Order 251 does not modify this federal order.
Are there exceptions to the mask mandate?
Yes. While masks are required for all indoor activities for the coming school year, exceptions will remain unchanged from the 2020-2021 school year. They include:
- When doing so would inhibit the individual’s health, such as when the individual is exposed to extreme heat indoors;
- When the individual has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove a face covering without assistance;
- When a student’s documented medical condition or disability, as reflected in an Individualized Education Program (IEP) or Educational Plan pursuant to Section 504 of the Rehabilitation Act of 1973, precludes use of a face covering;
- When the individual is under two (2) years of age;
- When an individual is engaged in an activity that cannot be performed while wearing a mask, such as eating and drinking or playing an instrument that would be obstructed by the face covering;
- When the individual is engaged in high-intensity aerobic or anaerobic activity;
- When a student is participating in high-intensity physical activities during a physical education class in a well-ventilated location and able to maintain a physical distance of six feet from all other individuals; or
- When wearing a face covering creates an unsafe condition in which to operate equipment or execute a task.
What do you do if students who do not fit into any of the exceptions refuse to wear a mask?
There needs to be a discussion among teachers and administrators as well as central office staff and legal counsel. Protocols must be established proactively that (1) help to educate parents that this is a mandate from the state with which schools must comply and (2) establish progressive measures that may be taken for students who refuse to follow the mask mandate.
School districts should also consider the potential public health dangers posed by students or adults who refuse to wear masks for any extended period of time and consider taking immediate action to isolate such individuals from the rest of the school environment immediately, while maintaining proper supervision, until such time as the individual agrees to wear a mask or, in the case of a child, the student is picked up by a parent or guardian.
Can staff members who do not fit into any of the exceptions be disciplined for refusing or simply not wear masks where and when required?
Yes. The masking requirement is a mandate of the State with which schools must comply. Any disciplinary action will need to ensure the protection of the staff member’s rights of due process—i.e., providing the staff member with notice and the opportunity to be heard. What the disciplinary action may be and how it will be instituted will depend on the policies and protocols adopted by the district.
What if a parent protesting the mask mandate seeks to enter the schools without a mask?
Letters should be sent out ASAP to the parents of the students explaining the Executive Order and explaining that protesting parents will not be allowed in the buildings without wearing a mask. Administrative staff should consult with the district’s central office and legal counsel, but protesting parents can be escorted away from school if they refuse to wear a mask.
Does the mask mandate apply to any school-sponsored event, even if outdoors?
Executive Order 251 mask mandate only applies to school activities in the “indoor portion of school district premises.”
What is the standard for excessive heat that would allow for an exemption from mask wearing indoors?
The State of New Jersey has not established a uniform standard for what constitutes excessive heat, but each school district should adopt specific guidelines on this issue, keeping in mind that situations may vary from school to school depending on whether the school has air conditioning and other environmental factors impacting temperature in all or a portion of a school building.
How does a parent/guardian seek an exemption from the mask mandate on behalf of a student?
Requests for exemptions based upon health reasons or medical conditions must be supported by medical documentation from a medical professional. Self-attestations and parental attestations are not sufficient under Executive Order 251 and 253.
A school district always has the right to seek clarifying information from a medical professional when a medical note is provided, which oftentimes occurs by having the school nurse or school physician contact the offices of the medical professional. Such clarifications could include confirming that the note was signed off on by the medical professional, clarifying whether the exemption is temporary or permanent in nature, and exploring whether alternative mitigating measures could reduce or eliminate the need for the mask exemption.