Federal Agencies Roll Out Reopening Guidance [by Julia Martin, Brustein & Manasevit]

As part of the effort to reopen schools – a stated priority for President Biden’s first 100 days in office – various federal agencies have been tasked with issuing guidance outlining what would be considered safety standards for reopening.  Those include the U.S. Departments of Education and Health and Human Services, the Department of Labor’s Occupational Safety and Health Administration, and the Centers for Disease Control (CDC).

The CDC was the first to release its guidance, which came out in February.  The guidance divides schools into tiers based on the incidence of new cases and level of community spread in their zip codes, and makes recommendations based on those factors.  The recommendations emphasize the potentially outsized impact of school closures on English learners and students with disabilities, among others, as a driving force behind concerns about equity.  Notably, however, these guidelines are only recommendations.  States and school districts are free to adopt their own standards, or none at all.

The guidance divides schools into blue (low), yellow (moderate), orange (substantial), and red (high) levels of risk.  In areas of low or moderate transmission, the agency recommends that K-12 schools reopen for full in-person instruction, so long as mitigation measures and physical distancing can be implemented.  With substantial or high transmission, CDC suggests hybrid modes or reduced attendance for elementary schools and hybrid or fully virtual learning for middle and high school students.  In no category does the CDC recommend that schools be completely closed to students, as they still are in several large cities and school districts.  However, it does say that the option for virtual instruction should still be offered, including for families who have individuals who are at increased risk of severe illness.

The CDC recommends a number of “layered mitigation” strategies when schools reopen for in-person instruction, including use of masks, physical distancing, handwashing, testing, and contact tracing in combination with isolation and quarantine in cases of confirmed cases and their close contacts.  The guidance also suggests the use of “podding” or cohorts to minimize exposure across the school environment and regular testing of students and staff.  However, it notes that it is important to consider what students may need to be offered additional services within the cohort – for example students with disabilities – in balance with federal disability and civil rights laws.  The implication in this case is that grouping students with special needs together to facilitate special services might run afoul of requirements to provide education in the “least restrictive environment.”

Additional consideration is given to a number of factors by which schools might ensure cleaner environments to mitigate the spread of disease.  These include regular sanitization of frequently touched surfaces, changes to physical layouts in classrooms in conjunction with physical barriers, discouraging shared items, flushing water systems, and closing communal spaces like dining halls and self-serve food operations.

Alongside this guidance, the U.S. Department of Education (ED) issued its own “Handbook” for reopening schools, a series of recommendations on safe practices for in-person learning.  The handbook expands on the CDC guidance, offering suggestions for distancing in the classroom and instructions for proper mask-wearing.  In addition, ED’s handbook suggests that schools and districts conduct “active and specific” outreach to “historically underserved” families, including to parents and students of color, English learners, and students with disabilities to communicate the health and safety measures in place and solicit input and questions.

The guidelines have been met with mixed reviews from all corners – and, notably, they do not depart significantly from general recommendations offered under the previous administration.  Conservatives have criticized them as overly restrictive given limited evidence that children experience severe illness or often transmit COVID-19.  Others have urged caution, saying that trust of school systems – especially for communities of color – remains an issue, especially as many teachers remain hesitant to return and vaccinations have been slow to roll out in many places.  Still, it is important to remember that these are only recommendations based on limited knowledge of a virus, and those might change as we learn more about school-level transmissions and the effectiveness of vaccines against current and future variants of the disease.

About the Author

Julia Martin is an attorney with the Washington, DC law firm The Bruman Group, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Association of ESEA State Program Administrators (NAESPA).