New Joint Guidance from ISBE and IDPH, Things to Remember as Restrictions are Eased
As COVID infection rates in Illinois have plummeted to their lowest level since August, ISBE and IDPH have released a slew of new guidance and information, aimed at easing restrictions and complying with the U.S. Department of Education’s invective to return students to in-person instruction as soon as possible.
Still, not everyone is yet-vaccinated, and the threat of the pandemic disease remains serious and real. While communities may be anxious to get back to normal, it is incumbent upon educators, boards, and school communities to continue to comply with the rules at the time of decision-making to be sure to retain the school’s ever-important tort immunity shield. While it may seem like the moment has passed, there are already thousands of lawsuits filed, and we are years away from the first decisions and settlements being publicized.
Sports and Gathering Guidance
The most significant change this month was the IDPH revision to spectator attendance at sporting events and gatherings, which changed to increase capacity for events:
Sports organizers should limit spectator attendance as follows, in accordance with regional mitigation levels as outlined in the Restore Illinois guidelines. When located in a region under Phase 4 as outlined in the Restore Illinois guidelines:Gatherings of up to 50 spectators are allowed when indoors.Gatherings of up to 20% capacity are allowed when outdoors.
Social distancing continues to be the recommendation, and face-covering requirements when outdoor social distancing is not possible continue to be in effect. Failure to adhere to the restrictions potentially jeopardizes both insurance coverage for a school and the school’s tort immunity shield. If a school’s tort immunity shield is jeopardized, not only can liability occur, but those who shared in the decision-making may suffer potential personal liability for the error.
Education Guidance
In addition to IDPH issued sports guidance, ISBE also released joint guidance with IDPH regarding education. Key revised provisions provide schools direction not only how to operate their educational environments, but to prioritize education. The emboldened headline on page 4 reads:
In-person instruction should be prioritized over extracurricular activities, including sports and school events, to minimize risk of transmission in schools and protect in-person learning.
While IDPH and ISBE have loosened the restriction for vaccinated staff to 3 feet where practicable, the restriction remains at 6 feet for staff unvaccinated. Schools must be alert to the fact that they may not know who is and is not vaccinated – and that intentional and mindful compliance with the guidelines remains key and critical to defense of the tort immunity shield. Moreover, schools should be alert that changes to conditions (including bringing more students back into classrooms) represents a mandatory subject of bargaining, and that written agreement with local unions should be secured before any changes are implemented. Where status quo does not include full in-person contractual work, a “reversion to the collective bargaining agreement” is likely to be a change to working conditions requiring a bargained result.
Also, according to the guidance, “Districts and schools should require self-certification and verification for all staff, students, and visitors prior to entering school buildings. IDPH and the CDC no longer recommend screenings upon arrival on the school grounds, but schools may continue this practice if preferred. See the CDC’s Screening K-12 Students for Symptoms of COVID-19: Limitations and Considerations for rationale regarding this decision.” p.8, emphasis added. In addition to being alert to what a region’s local health department is advising, schools must be alert to conditions with the local collective bargaining agent – again, failure to bargain a change could subject a school to allegations of an unfair labor practice if the school refuses to discuss making a change to conditions of employment which may affect staff perception of or participation in the safety of the working environment.
The guidance also eased restrictions on quarantining, eliminating the need to quarantine staff who are vaccinated unless such staff exhibit symptoms of COVID-19. Schools should consult local health departments for quarantine requirements in individual staff situations.
Perhaps most significantly to many schools, ISBE and IDPH included the following statement on remote instruction: “Consistent with the updated guidance from the CDC, families of students who are at increased risk of severe illness (including those with special health care needs) or who live with people at increased risk must be given the option of remote instruction.” While ISBE had previously required a remote instructional plan for all students, the language appears to imply a lack of the requirement for such provision absent need. Schools should be alert to collective bargaining obligations and the fact that not all parents and students will be comfortable with immediate return to instruction - and schools may not possess, on first blush, all of the facts regarding student and staff conditions and needs. Schools seeking to return to in-person-only instruction should proceed with great caution.