Executive Order 251 (School Mask Mandate) and Executive Order 253 (Vaccination or Testing Requirements)
By Debra Bradley, Esq.
As educators across New Jersey prepare to open their schools this September, the resurgence of COVID-19 cases has refocused our preparations back to issues of health and safety. This situation has also led Governor Murphy to issue two recent Executive Orders concerning public health issues in schools that are important for you to understand. Pursuant to state statute, P.L. 2021, c. 103 and other statutory authority, Governor Murphy has the legal authority to issue such orders related to implementation of recommendations of the Centers for Disease Control and Prevention to prevent or limit the transmission of COVID-19 and related to vaccine distribution, administration and management, COVID-19 testing and data collection.
Executive Order 251 School Mask Mandate
Until modified or revoked, Executive Order 251 requires masks to be worn in preK -12 settings in public, private, charter, Renaissance and parochial schools beginning on August 9, 2021 in the circumstances described below:
All school staff, students and visitors must wear masks indoors unless:
- mask wearing inhibits the individual’s health, including in extreme heat indoors;
- the individual has trouble breathing, is unconscious, or is incapacitated;
- a student has a documented medical condition, reflected in an IEP or 504 plan that precludes mask wearing;
- the individual is engaging in an activity that cannot be physically be performed wearing a mask (eating, drinking, playing a musical instrument, etc.);
- the individual is under the age of two;
- the individual is engaged in a high intensity physical activity in a physical education class when the area is well ventilated and social distancing requirements of 6 feet are maintained; or
- wearing a mask created an unsafe condition to operate equipment or execute a task.
Adult students or parents may request exemptions on the basis of medical conditions, by submitting requests supported by medical documentation. A parent’s self-attestation of an existing medical condition of their child is not sufficient, even if put in writing by the parent. Executive Order 253 clarifies that individuals seeking exemptions from mask wearing requirements based upon medical conditions (under paragraphs 1a to 1c of that EO 251) must produce written documentation from a medical professional. Check with your local board of education to determine if your district has established a specific policy concerning mask wearing and the process to seek an exemption. Local boards cannot pass policies that are inconsistent with the Executive Order or that impede its enforcement. However, boards can define terms such as which medical professionals are appropriate for documentation of exemptions or the role of the school physician in this process.
- Students are still required to wear masks on school buses pursuant to a separate federal order requiring masks on all transportation that remains in effect.
- The State Police is charged in the Executive Order with its enforcement.
- Masking does impact other issues such as issues of contact tracing and “close contact” under the quarantine rules. The DOE/DOH guidance, “The Road Forward,” defines that “close contacts” for the purpose of quarantine excludes students who would otherwise be considered a close contact when the infected student and exposed student correctly and consistently wore well-fitting masks the entire time they were in contact with each other. This exception does not apply to adults in the guidance.
- Issues related to school enforcement of mask wearing rules should be discussed and a school policy developed. Your superintendent should provide guidance to the administrative team on this issue before the start of school.
Executive Order 253 Vaccine or Testing Requirements
Until modified or revoked, this Executive Order requires all workers and regularly scheduled volunteers in a preK-12 school setting to submit proof of full vaccination or submit to COVID testing at least once or twice a week beginning on October 18, 2021. The Order applies to both full-time and part-time employees, contractors, regular volunteers and others working in the school grounds of the school covered by this Executive Order.
The term “covered workers” is defined as including but not limited to administrators, teachers, educational support professionals, individuals providing food, custodial, and administrative support services, substitute teachers (direct employees or contracted), contracts, providers and any individuals performing work at the school whose job duties require them to make regular visits to the school including volunteers.” Visitors or those individuals who perform one-time or limited-duration services, repairs or construction are not considered covered workers.
As with EO 251, the order applies to public, private, and parochial schools, including charter and Renaissance schools.
Proof of Vaccination
Executive Order (EO) 253 notes the following as acceptable forms of proof of vaccination:
- The CDC COVID-19 Vaccination Card issued to the vaccine recipient by the vaccination site, or an electronic or physical copy of the same;
- Official record from the New Jersey Immunization Information System (NJIIS) or other State immunization registry;
- A record from a health care provider’s portal/medical record system on official letterhead signed by a licensed physician, nurse practitioner, physician’s assistant, registered nurse or pharmacist;
- A military immunization or health record from the United States Armed Forces; or
- “Docket”, the state-selected mobile phone application record or any state specific application that produces a digital health record.
Schools must comply with all federal and state laws, including but not limited to the Americans with Disabilities Act, that regulate the collection and storage of such information.
A worker is considered “fully vaccinated” two weeks or more after they have received the second dose of a two-dose series, or two weeks or more after a single-dose series vaccine. The Federal Food and Drug Administration or World Health Organization must have approved the vaccine utilized for emergency use authorization for an individual to meet the definition of “fully vaccinated” upon completion of the series and two-week waiting period.
NJPSA and the education community are awaiting more guidance from the DOH and DOE on this requirement via guidance. What we do know from EO 253 is that all individuals covered by this Executive Order in our schools who do not submit proof of vaccination by October 18, 2021 will be required to be tested “at least once or twice weekly.” An individual can choose either antigen or molecular tests that have emergency use authorization by the U.S. Food and Drug Administration or are operating per the Laboratory Developed Test requirements set by the U.S. Centers for Medicare and Medicaid Services.
It is our understanding that the New Jersey Department of Health will be offering a testing program funded by a combination of federal ESSER funds and state funding to be made available to local school districts. Districts may offer on-site testing to employees via this program or through other providers it may select. It may provide access to either an antigen or molecular test. NJPSA anxiously awaits more details about these requirements.
If an employee is not working on a particular week, the employee does not have to be tested that week.
If an individual shows symptom, and the school district and/or local public health agency have existing testing requirements in place, this EO does not supplant those policies. School districts must have a policy for tracking the test results and reporting the data to their local public health departments.
Note that school districts can choose to adopt a vaccination or testing policy that includes additional or stricter requirements so long as it meets the existing minimum requirements of EO 253.
As more information becomes available, NJPSA will provide it to you. If you have questions please contact the NJPSA Government Relations or Legal Departments.