School Board Work Session
Policy EBBA – Disease Prevention; Face Coverings
Office of Legal Services – John C. Palmerini June 1, 2021
Agenda
• Overview – Emergency Rulemaking
• Tentative Schedule
• History of Policy EBBA
• Proposed Revisions
• Next Steps
• Questions and Discussion
EBBA DISEASE PREVENTION; FACE COVERINGS
• Rulemaking and Emergency Rulemaking
• The only way to change Policy EBBA is through the rulemaking process. Rulemaking is governed by Section 120.54, Florida Statutes.
• Under Section 120.54(4)(a), Florida Statutes, “If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger.”
• The whole purpose for revising the face covering policy to make the wearing of same voluntary is based upon guidance from the state, including the State Surgeon General, who states “scientific studies show that COVID-19 vaccines protect individuals from COVID-19, dramatically diminish hospitalization and death caused by COVID-19 and protect both the vaccinated individual and others against COVID-19 infection.”
• If the data demonstrates that vaccines decrease dangers to public health, safety, and
welfare, then there is not the ability to state that absent emergency rulemaking, the face covering requirement is causing an immediate threat to public health, safety, and welfare.
• Accordingly, it is our legal opinion that this policy may not be revoked through emergency rulemaking.
• Other Districts
Tentative Schedule
• Work Session June 1, 2021
• Rule Development Workshop June 17, 2021
• Board Approval July 13, 2021
• Effective Date No later than August 2, 2021
REVISED POLICY
EBBA DISEASE PREVENTION; FACE COVERINGS
EBBA DISEASE PREVENTION; FACE COVERINGS
Purpose
Policy EBBA currently requires all persons on OCPS property, absent certain exceptions, to wear a face covering which covers their nose and mouth in order to stop the spread of the COVID-19 virus.
Actions Summary
The proposed revisions to the policy include making the wearing of face coverings optional for the 2021-2022 school year.
EBBA DISEASE PREVENTION; FACE COVERINGS
History of Policy EBBA
• June 24, 2020 - Orange County Executive Order 20-25 was entered by Mayor Demings
• August 11, 2020 - School Board enacted Policy EBBA through the emergency process
• August 25, 2020 - School Board revised Policy EBBA through the emergency process
• September 8, 2020 - School Board again revised Policy EBBA through the emergency process
• October 13, 2020 - School Board adopted, through the regular rulemaking process, the current version of Policy EBBA
EBBA DISEASE PREVENTION; FACE COVERINGS
• March 29, 2021 - Senate Bill 72 was passed and signed by Governor DeSantis establishing Section 768.38, Florida Statutes, providing
educational institutions with immunity from civil liability for a Covid-19 related claims
• April 14, 2021 - Commissioner of Education Richard Corcoran issued a memorandum to all School District Superintendents
• “As we are planning to provide our students with robust summer programs and welcoming students returning to school in the 2021-2022 school year, we expect more students to participate in face-to-face instruction. Right now, our schools are safer than the communities at large. This safety record should only increase next school year with the increased availability of vaccines. With this return, we ask that districts, which currently are implementing a mandated face covering policy, revise their policy to be voluntary for the 2021-2022 school year.”
(Emphasis in original)
EBBA DISEASE PREVENTION; FACE COVERINGS
• April 29, 2021 - State Surgeon General Scott Rivkees issued a Public Health Advisory which states “due to COVID-19 wide-spread vaccine availability, fully vaccinated individuals should no longer be advised to wear face coverings or avoid social and recreational gathering except in limited circumstances.”
• May 3, 2021 - Governor DeSantis issued Executive Order 21-101 which provides “Nothing herein prohibits a political subdivision of the State from enacting ordinances pursuant to regular enactment procedures to protect the health, safety, and welfare of its local population.” The order is effective July 1, 2021.
EBBA DISEASE PREVENTION; FACE COVERINGS
• May 3, 2021 - Governor DeSantis issued Executive Order 21-102, which states: “This order eliminates and supersedes any existing emergency order or ordinance issued by a county or municipality that imposes restrictions or mandates upon businesses or individuals due to the COVID-19 emergency.”
• May 3, 2021 - Chancellor of Education Jacob Oliva issued the following clarifying guidance:
• “Questions have arisen over the impacts of the Executive Orders EO-21-101, which is not effective until July 1, 2021, and EO-21-102, which is effective immediately. To clarify, EO-21-102 only impacts city and county governments, and does NOT impact school
districts and individual schools. Moreover, EO-21-101 and EO-21-102 only impacts restrictive COVID-19 orders/ordinances that are adopted through emergency
enactment. Neither EO-21-101 nor EO-21-102 impact any school district’s policies for the remainder of the 2020-21 school year.” (Emphasis in original)
EBBA DISEASE PREVENTION; FACE COVERINGS
• May 12, 2021 - CDC guidance regarding fully vaccinated and non- vaccinated persons
• One Final Consideration - The District’s MOU with the Orange County Classroom Teachers Association runs through July 31, 2021.
• Proposed effective date for the proposed revisions to Policy EBBA is “no later
than August 2, 2021.” In the event the School Board chooses to revise the policy as recommended, we would attempt to negotiate with the union accordingly.
EBBA FACE COVERINGS
Description Current Policy Revision to Policy
Face Coverings Policy Cites CDC and WHO guidance on wearing face coverings. Cites the Emergency Order requiring schools to open for face- to-face instruction for the 2020-2021 school year.
The revised policy cites the guidance from Commissioner Corcoran and State Surgeon General Rivkees and states the District’s desire to rely upon their guidance for the purposes of the newly enacted Section 768.38 immunity from liability for COVID-19 claims.
Section I: Rule Face coverings required unless certain
exceptions are met. Face coverings will be permitted at the discretion of each student, employee, visitor, or vendor, but not required.
Section I: CDC Guidance or Guidance from Other
Governmental Entities
None This provision states the School Board will allow the
Superintendent to implement more restrictive face covering
requirements if the CDC or other government entities issues such guidance
Section II: Effective Date None The effective date of this policy is “no later than August 2, 2021.”
This is before the start of the new school year, but after the
expiration of the current MOU with the Orange County Classroom Teachers Association.
The rest of the current policy See policy The rest of the current policy will be repealed.
Next Steps
• Rule Development Workshop - June 17, 2021 (public comment)
• Final Policy adoption - July 13, 2021 School Board meeting (public comment)
• 2nd Rule Development Workshop if needed for substantial revisions – June 23, 2021 (public comment)
• Final Policy adoption – July 20, 2021 Special School Board meeting (public comment)
• Effective Date – no later than August 2, 2021
• OCVS enrollment deadline - July 30, 2021
