By Joanne L. Butler, Esq.

As the 2021–2022 school year rapidly approaches and the State‘s COVID–19 numbers increase daily, Governor Murphy issued Executive Order 253 (“EO-253”) on August 23, 2021 imposing a vaccination mandate for public and private school staff and limiting the ability of staff and students to obtain exemptions from mask wearing.

Acknowledging the findings of the American Academy of Pediatrics (“AAP”) that remote learning is detrimental to students’ learning and mental health, and the determination of the Centers for Disease Control and Prevention (“CDC”) that the variants of COVID-19, particularly the new Delta Variant, are more transmissible than prior strains, Governor Murphy concluded that additional precautions are required in certain settings, particularly where a substantial number of individuals are not vaccinated. Relying on the CDC’s emphasis that vaccination of teachers and staff is a critical means to combat the spread of COVID-19, particularly to those who are too young to be vaccinated, Governor Murphy has now ordered that all public and private preschool programs and elementary and secondary schools have policies requiring all “covered workers” to either provide proof that they have been fully vaccinated or submit to COVID-19 testing at a minimum of once or twice each week. The requirements are effective October 18, 2021.

EO-253 defines “covered workers” as all individuals employed by the school, whether full- time or part-time, including, but not limited to: administrators; teachers; educational support professionals; individuals providing food, custodial, and administrative support services; substitute teachers, whether employed directly by the school or otherwise contracted; contractors; providers; and any other individuals performing work which requires regular visits to schools, including volunteers. Covered workers do not include individuals visiting the school to provide one-time or limited duration repairs, services or construction.

Covered workers are not considered fully vaccinated until two weeks or more after receiving a single-dose vaccine or the second dose of a two-dose vaccine. If not fully vaccinated, covered workers shall be considered unvaccinated and, therefore, will have to undergo weekly testing. Schools and school districts are permitted to impose additional or stricter requirements that exceed the minimum requirements of EO-253, including more frequent testing of covered workers.

Similar to prior Executive Orders and State legislation, EO–253 anticipates that school districts continue to have access to sufficient funding to cover the costs associated with vaccination efforts and testing through the federal Elementary and Secondary Emergency Relief Funds. While this funding access presumably anticipates actual costs of the record-keeping and testing, there may be greater financial impact for districts as the impact of such a mandate may be subject to negotiations. Whether or not to pay for the testing or to provide release time are local decisions, but are likely mandatorily negotiable subjects should employee representatives seek to negotiate the issues.

EO-253 also clarifies the existing indoor school mask mandate. EO–251 mandated that staff, students and visitors wear masks in indoor school spaces, but allowed for exemptions if wearing a mask would inhibit an individual‘s health, if an individual has trouble breathing, or if a student has a documented medical condition or disability which precludes the use of a mask. Relying on both AAP and CDC guidance regarding the need for teachers, staff and students to wear masks, particularly since the majority of students are not old enough for vaccination, EO-253 mandates that anyone seeking an exemption from wearing a mask must provide written documentation from a medical professional in support of the requested exemption. Notes or attestations from staff or parents are not sufficient.

The full text of EO-253 may be accessed using the following link:

https://nj.gov/infobank/eo/056murphy/pdf/EO-253.pdf

For more information on this Legal Alert or related issues, please contact the education law attorneys at Schenck Price.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.