MCCCD Faculty The Office of General Counsel DATE: August 12, 2021 Updated guidance in responding to students who do not wear a face covering

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TO: MCCCD Faculty

FROM: The Office of General Counsel DATE: August 12, 2021

RE: Updated guidance in responding to students who do not wear a face covering

Below is guidance to assist faculty in circumstances where a student is unwilling to wear a face covering. For questions or assistance, feel free to email David Bowman at

[email protected] or Melissa Flores at [email protected].

Campus administration should ensure that free face coverings are easily available to all faculty, staff, and students.

• Remind any student not wearing a face covering that District policy requires all individuals to wear a face covering or mask when inside all Maricopa buildings. This policy protects the health and safety of the students, faculty, and staff at college/District community during the COVID-19 pandemic. Research shows that

wearing face coverings and masks may reduce the risk of spreading the disease. Since a person infected with COVID-19 may not exhibit symptoms for several days, he or she may unknowingly spread the virus when interacting with others. In addition, fully vaccinated individuals may be capable of spreading the virus while exhibiting few or no symptoms themselves.

• Under no circumstances should a student be asked whether they have received the COVID-19 vaccine, because the District’s mask requirement applies to all individuals regardless of vaccination status.

• This current face covering/mask requirement applies to all employees and students regardless of vaccination status. This face covering/mask requirement does not violate the Governor’s Executive Order (2021-15) or Arizona Revised Statute 15.1650.05 (effective September 29, 2021) because both specifically prohibit colleges and universities from imposing a mask or vaccine mandate (or any other different treatment)

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for those who choose not to be vaccinated or choose not to disclose their vaccination status.

• Some students may claim that they need an accommodation from wearing a face covering for religious, health-related reason, or an existing disability.

Such requests will be evaluated on a case-by-case basis, depending on the facts of each specific circumstance. The goal of the evaluation process is to ensure the safety and health of the student requesting an accommodation, the other students in the class, faculty and staff. All available options will be considered in each case.

• Students who claim they need an accommodation from wearing a face covering for health-related reasons or existing disabilities should be reminded that accommodations are evaluated and granted by the college Disability Resources Services (DRS). They should be asked to call the DRS office to begin the interactive process for requesting an accommodation. Until such time as they receive an accommodation, they must either wear a face covering or leave class. It is important to remind the student that time is of the essence in calling DRS as

accommodations take time to approve. DRS will inform relevant faculty regarding students who have accommodations that excuse wearing a face covering. Note that faculty have the discretion to excuse the absence and do not have to modify their attendance requirements unless an official accommodation is granted to the student.

• Students who claim they have a religious reason for not wearing a face covering should be directed to file a request for a religious accommodation with the Dean of Student’s Office. Their request will be evaluated according to the Religious Accommodation Procedure. Until such time as they receive an

accommodation, they must either wear a face covering or leave class. Note that faculty have the discretion to excuse the absence and do not have to modify their attendance requirements unless an official accommodation is granted to the student.

• Students who are not wearing a face covering may be asked if they have an approved accommodation from either campus DRS or the Office of the Dean of Students. They should not be asked to provide any information about the basis for the accommodation. DRS or the Office of the Dean of Students can verify whether a student has an accommodation from wearing a face covering, and if so, what the accommodation’s parameters are, but should not reveal the basis for the

accommodation.

• Students may be referred for a code of conduct violation (failure to follow college policy/directives) if they refuse to wear a face covering to class (while the face covering requirement is in place), have no accommodation in place (due to religious, health-related reasons or an existing disability), and have not worked with their faculty member or college administration regarding moving to an online class.

• Faculty may alert their Dean or Department Chair when they encounter a student who is unwilling to wear a face covering. If a student is asked to leave the classroom because of their refusal to wear a face covering, faculty should ensure the student understands the request to leave is being made as a measure to ensure the health

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and safety of all students. If the student refuses to leave, faculty or the Dean or supervisor may call their campus COVID-19 representative.

• Refusal to leave class after being told to leave by the faculty (due to refusal to wear the face covering) should be treated as are other classroom

disruption cases, including calling Public Safety if necessary.

• As to individuals other than students, District staff and faculty may ask an individual who is not wearing a face covering if they have an

accommodation that excuses them from wearing a face covering. Those who do not have such an accommodation should be directed to take action as described here or requested to leave. Those indicating they have an accommodation should not be asked to reveal the specific health conditions or religious reasons that justify their accommodation. District HR (if the individual is an employee) or Risk Management (if the individual is a visitor) can verify whether the individual has an accommodation from wearing a face covering, and if so what the accommodation’s parameters are.

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TO: MCCCD Supervisors

FROM: The Office of General Counsel DATE: August 12, 2021

RE: Updated guidance responding to employees or visitors who refuse to wear face coverings

The guidelines below update the Office of General Counsel’s previous guidance dated June 22, 2020 for supervisors regarding how to manage issues arising from the District’s face covering requirements in response to the COVID-19 pandemic. For questions or assistance, feel free to email David Bowman at [email protected].

Guidance related to Employees

• District policy requires that face coverings be worn by all staff, faculty, students, police, and guests (including contractors) when inside all Maricopa buildings. Face coverings are no longer required when an individual is outside on District grounds. These policies protect the health and safety of the students, faculty and staff in our college/District community during the COVID-19 pandemic. Research shows that wearing face

coverings indoors reduces the risk of spreading the disease. Since a person infected with COVID-19 may not exhibit symptoms for several days, he or she may unknowingly spread the virus when interacting with others. In addition, fully vaccinated individuals may be capable of spreading the virus while exhibiting few or no symptoms themselves.

MCCCD's current policy does not mandate vaccination, and because of this, no employee (or other campus or District guests) shall be asked whether they have received the

COVID-19 vaccine.

• The District will continue to maintain an adequate supply of free face coverings for employees, students, and visitors.

• This face covering/mask requirement does not violate the Governor’s Executive Order (2021-15) or Arizona Revised Statute 15.1650.05 (effective September 29, 2021) because both specifically prohibit colleges and universities from imposing a mask or vaccine mandate (or any other different treatment) for those who choose not to be vaccinated or

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choose not to disclose their vaccination status. This current face covering/mask requirement applies to all employees and students regardless of vaccination status.

• Some employees may indicate a need to be excused from wearing a face covering for religious or health-related reasons, or because of existing disabilities that would be aggravated by a COVID-19 diagnosis. Such requests for accommodation will be

evaluated on a case-by-case basis, depending on the facts of each specific circumstance.

The goal of the evaluation process is to protect the safety and health not only of the

employee requesting an accommodation, but also other employees, faculty, and students.

All available options will be considered in each case, including providing adequate physical distance in the workplace, erecting plexi-glass barriers, and/or telecommuting.

• Human Resources Directors are prepared to handle employee accommodation requests to not wear a face covering for health-related reasons or because of existing disabilities.

During the required interactive process, the employee may be removed from the workplace with no employment penalty, either through telework arrangement or paid administrative leave. An employee who indicates they need an accommodation to not wear a face covering should not be asked by their supervisor to provide any additional information about the basis for the accommodation, but should be referred to Human Resources.

• Supervisors should handle employee requests to not wear a face covering for religious reasons pursuant to the District’s Religious Accommodation Procedure. Requests for a religious accommodations should be made using this form.

• An employee seeking an accommodation from wearing a face covering for health-related reasons or because of existing disabilities will need to provide documentation to support the employee’s claim that they cannot wear a face covering and indicate whether there is any accommodation that would enable them to wear one (for example, a different type of face covering, the ability to frequently change the face covering, etc.).

• District staff and faculty may ask an individual who is not wearing a face-covering if they have been granted permission from either Human Resources (for employees) or DRS (for students) or the campus COVID-19 representative (for visitors) that excuses them from the requirement of wearing face-covering while in the presence of others in a Maricopa building. Those who have not received such permission should be directed to engage in the established process, depending on whether they are staff, a student or visitor, and asked to leave until such time as they have been granted such permission. At no time may a person be asked to reveal the specific health conditions, existing

disabilities or religious reasons that justify their granted accommodation. HR Directors, DRS managers, or campus COVID-19 leads may be asked to verify that a person not wearing a face covering has an accommodation that excuses use of a face covering. Such persons should not indicate the basis for the accommodation.

• Employees who refuse to wear a face covering when required in the work place and who have no accommodation in place due to health-related reasons, religious reasons or an existing disability, will be asked to leave the workplace. If an employee who is not wearing a face covering refuses to leave the workplace, a supervisor should be called to help address the situation. If the employee refuses the supervisor’s request to leave, the supervisor should call the campus COVID-19 lead.

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• If all of the above efforts to ensure an employee wears a face covering have been unsuccessful, and the employee refuses to leave the workplace, Public Safety may be called.

• Employees who refuse to wear a face covering may be subject to disciplinary action pursuant to the Staff Policy Manual or the Faculty Agreement, as applicable.

Guidance related to Visitors

• If a visitor refuses to wear a face covering while in a college or District building, remind them that Maricopa County Regulations and District policy require all individuals to wear a face covering in these circumstances. These policies protect the health and safety of the students, faculty and staff in our college/District community during the COVID-19 pandemic. Research shows that wearing face coverings indoors reduces the risk of spreading the disease. Since a person infected with COVID-19 may not exhibit symptoms for several days, he or she may unknowingly spread the virus when interacting with others.

• Some visitors may indicate a need to be excused from wearing a face covering for religious or health-related reasons or because of an existing disability. Such visitors may be referred to a supervisor or other employee with the authority to determine how to best meet the visitor’s needs while maintaining a safe environment for other Maricopa employees, students, and visitors. It may be necessary to conduct such conversations outside, at an appropriate distance, or over the phone.

• If a visitor refuses to comply with a request to leave a District building, the campus COVID- 19 lead should be called. If the visitor refuses the campus COVID-19 lead’s direction to leave the property, Public Safety may be called.

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CLICK BOOKMARKS FOR TABLE OF CONTENTS

MCCCD Face Coverings Rules and Procedures-PVCC.docx 1 August 2020

Face Covering Policy, Administration and Guidelines

Maricopa County’s Regulations Requiring Face Coverings, issued June 19, 2020 and the Maricopa County Community College District’s (MCCCD) policy require all individuals on campus to wear a face covering or mask. These policies protect the health and safety of the students and employees at the college/District community during the COVID-19 pandemic.

Face Coverings: According to the CDC Guidelines, cloth face coverings that cover both the nose and mouth are suitable for assisting with slowing the spread of Covid 19. CDC does not recommend the use of face shields for normal everyday activities or as a

substitute for cloth face coverings. Some people may choose to use a face shield when sustained, close contact with other people is expected. If face shields are used without a mask, the face shield should wrap around the sides of the wearer’s face and extend to below the chin. Disposable face shields should only be worn for a single use.

Students who are not wearing a face covering may be asked if they have an accommodation from either campus DRS or the Office of the Dean of Students and/or Dean of Academic Affairs that excuses them from wearing a face covering. They should not be asked to provide any information about the basis for the accommodation. DRS or the Office of the Dean of Students and/or Dean of

Academic Affairs can verify whether a student has an accommodation from wearing a face covering, and if so, what the accommodation’s parameters are, but should not reveal the basis for the accommodation.

Faculty/Staff Notification

● Faculty will receive a Faculty Notification Letter approving the accommodation. Students will be notified by the DRS Office that they must continue to abide by the policy until such approval is granted.

● Students granted a religious accommodation will be approved by the Department Chair/Academic Dean and in consultation with the faculty member. Students will be notified by faculty that they must continue to to abide by the policy until such approval is granted.

● All students with approved accommodations will have notes entered into the SIS person comments screen. Notation will simply state “Student is approved for face covering exemption.” Only the DRS, Dean of Students and Dean of Academic Affairs office will input this information.

● Provisional accommodations will not be granted for face coverings..

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Student Responsibility

● Students engaged in the interactive process for accommodation will be notified of the policy and expectations until such approvals are granted.

● Students receiving approval will be notified in writing and will be required to have this document on hand while attending in person campus or seeking in person services.

● Students will be notified of the Student Rights and Responsibilities and expected adherence to the Code of Conduct Policy.

MCCCD POLICY

Exemptions and Refusals COLLEGE RESPONSE

Policy and Practices GUIDING ACTION FACULTY/STAFF SUPPORT Students requesting an

accommodation or refusing to wear a mask on the basis of a disability or health impairment should be referred to Disability Resources and Services (DRS).

DRS will engage in an interactive process with the student in order to determine effective and reasonable accommodations, including an intake and documentation review.

Provisional accommodations will not be granted allowing a student to not wear a face mask for in person classes.

For students who are new to DRS, in order to request an accommodation, should submit a new student

application, along with documentation from a medical professional, in DRS Connect on the DRS website and schedule an appointment by calling 602-787-7171, connecting on Cranium, or by email at dl-pvc- [email protected] If the student is already being served by DRS, the student can request a new accommodation for an already disclosed disability or disclose a new disability for which they seek the accommodation.

DRS will engage in the interactive process with the student.

If granted an accommodation, DRS will alert the student’s faculty of the accommodation via the Faculty Notification Letter (FNL) through their

Faculty should not provide accommodations other than those approved by DRS.

Faculty should encourage students to connect with DRS as quickly as possible but may not mandate or require a student to do so.

Students must voluntarily self- identify their needs to DRS.

Faculty are also encouraged to submit an EARS referral so that DRS may reach out to invite the student in for services.

The District has determined that there may be reasonable exceptions to the Face Covering policy and faculty should comply with all

accommodations on the Faculty Notification Letter. These exceptions will likely be few and far between, but the interactive process is outlined to address these situations.

Faculty are also encouraged to share concerns by contacting their college DRS manager, Elsbeth Pollack at (602) 787-7171 or by email at [email protected]

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MCCCD POLICY

Policy and Practices GUIDING ACTION FACULTY/STAFF SUPPORT Maricopa email. Faculty may also

review student information in their faculty DRS Connect page. This accommodation would be specific to attending class.

Students requesting an exemption to the face covering policy on the basis of a religious reason should be directed to file a request for a religious accommodation with the Dean of Students and/or Dean of Academic Affairs Office.

NO provisional accommodations should be granted allowing a student to not wear a face mask.

The Dean of Students and/or Dean of Academic Affairs Office will follow these guidelines:

ND-4 Religious Accommodation and Procedure

The Dean of Students and/or Dean of Academic Affairs Office will alert the faculty if a student is approved for religious accommodation.

Faculty should refer students to the Dean of Students and/or Dean of Academic Affairs Office.

Students' requests will be evaluated according to the Religious Accommodation Procedure.

Until approved, students must either wear a face covering or leave class.

Please contact Dr. Jana Schwartz ([email protected]) for any additional questions.

Students who refuse to wear a face covering to class (while the face covering requirement is in place) and who have no

accommodation in place (due to religious, health-related reasons or an existing disability) and have not worked with their faculty member or school administration regarding moving to an online class MUST be asked to leave the classroom and to not return unless they are wearing a face mask or have been granted an accommodation. After being told once to leave (and they return or refuse to leave), the student may be

Students right to due process:

1. Students need to be alerted to the policy and given an opportunity to adjust their behavior and/or make alternative arrangements (i.e.

moving to an online class, seeking accommodation if appropriate).

2. Once directed to the appropriate process, the student may be asked to leave class (and leave campus) if they are not wearing a face mask.

3. If the student continues to

Faculty have a role in the due process for a student and should be the first to

communicate the policy for in- person classes, along with options for students who will not/can not wear an appropriate face covering. The faculty member should ask the student to leave the class (with no academic penalty for that class period).

Refusal to leave class after being told to leave by the instructor (due to refusal to

See below. The goal is to mitigate and get ahead of any challenges.

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MCCCD POLICY

Policy and Practices GUIDING ACTION FACULTY/STAFF SUPPORT referred for a code of conduct

violation (failure to follow college policy/directives).

refuse to wear the mask and has no ADA or religious accommodation or religious, the student should be administratively removed from campus and referred to the academic/student affairs administration for next steps (conduct issues, trespass)

wear the face covering) should be treated as are other

classroom disruption cases, including calling the PVCC Covid Representative or College Police, if necessary.

Faculty Considerations

1. Faculty have the discretion to excuse the first absence--when the student is asked to leave for failure to wear a face mask-- but do not have to modify their attendance requirements (moving forward), unless an attendance accommodation has been determined reasonable.

2. Faculty have discretion to excuse absences for students who do not attend class due to the processing of the accommodation request, but this discretion should be equitable.

Communication Strategies

1. Communicate with your student in advance of the class start date

○ Email students the information on the face covering policy and include information on how to request an ADA or religious accommodation. Include verbiage that students will not be permitted to attend class without wearing the face mask, which is why it is imperative that affected students begin the accommodation process early.

○ For those seeking a medical/health or religious accommodation, remind them that a face covering is required until the accommodation has been approved and you have been alerted by the College DRS or Dean of Students and/or Dean of Academic Affairs Office.

○ Faculty have discretion to excuse absences for students who do not attend class due to the processing of the accommodation request, but this discretion should be equitable.

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2. Focus on the policy and requirements.

○ City of Phoenix Face Covering Mandate and MCCCD Face Covering Policy

○ Proposed syllabus statement (currently vetting): Maricopa County’s Regulations Requiring Face Coverings in

Maricopa County, issued June 19, 2020 and District policy require all individuals on campus to wear a face covering or mask. These policies protect the health and safety of the students and employees (and the public, to the extent that colleges are open to the public) at the college/District community during the COVID-19 pandemic. Students seeking accommodation from wearing a face mask or covering for health-related reasons or an existing disability must be registered and approved for accommodations by their college’s Disability Resources Office before they are able to refrain from wearing a face mask. Students seeking religious accommodations from wearing a face mask or covering must contact the Dean of Students and/or Dean of Academic Affairs office and engage in the accommodation process.

All students seeking an accommodation (either for a disability or for religious reasons) must continue to wear a face covering until such accommodations have been approved.

○ PVCC is committed to providing the best student experience possible while keeping the health and safety of our college community our highest priority. In response to COVID-19, there is a possibility that the structure of this class could change to entirely online delivery in order to ensure health guidelines.

3. How to ask if they have a DRS or religious accommodation or know if they have been approved for an exemption to the face covering policy?

○ Students who are not wearing a face covering may be asked if they have an accommodation from either campus DRS or the Office of the Dean of Students and/or Dean of Academic Affairs that excuses them from wearing a face

covering.

○ Students should produce verification that an exemption has been approved and/or you should receive a Faculty Notification Letter via DRS Connect. Religious accommodations will be approved by the Department Chair/Academic Dean and faculty will be notified.

○ DRS or the Office of the Dean of Students and/or Dean of Academic Affairs can verify whether a student has an accommodation from wearing a face covering, and if so, what the accommodation’s parameters are, but will not reveal the basis for the accommodation.

○ Students should not be asked to provide any information about the basis for the accommodation.

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4. Faculty expectations in mitigating escalation

○ Faculty have a responsibility to engage the student and outline expectations as part of the due process afforded to the student. This can most easily be done by including the DRS syllabus statement on their course material.

○ Upon reviewing/sharing the policy with students, provide an opportunity for those without a face covering to wear one (these will be provided to faculty and in the classrooms)

○ Faculty questions may be routed to the Dean of Students and/or Dean of Academic Affairs Office for review.

5. College Police - Their role and when to call

○ Should a student not follow the policy, refuse to leave and/or escalate into a disruption that affects the overall

classroom environment, faculty/staff will try to de-escalate any situation as the first protocol. Please contact the Dean of Students and/or Dean of Academic Affairs Office, as a second intervention (after the discussion with the student has proved unproductive).

○ College Police should only be contacted when the situation has escalated to the point where assistance in enforcing our administrative policies is needed or when a possible crime (trespassing) is being committed. College Police and the Dean of Students and/or Dean of Academic Affairs Office are committed to working collaboratively to support the health and safety of our students and faculty.

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ADA Accommodation Questions with In-Person Classes:

1. What happens if a student has an accommodation and other students do not feel comfortable working with them on group or team projects?

a. Example: Group assignments and presentations

i. The MCCCD cannot force a student to work with another student who is not wearing a face covering. Faculty should consider other alternatives, such as allowing the project or collaboration to be done online (with no face-to-face contact). Material changes in the coursework by not requiring group/project work may be grounds to deny the accommodation request.

ii. Students who request to not work with students with accommodations that allow them not to wear a mask should be guided by the faculty and/or department chairs for alternative learning opportunities. Consult District legal for assistance in addressing these situations.

2. In the case where social distancing is not feasible, what is the faculty required to do when student interaction is at close range and a student has medical accommodation to not wear a mask?

a. Example: Classes with lab assignments

i. Faculty should contact DRS in order to determine what additional accommodations are available or if a more effective accommodation is possible.

ii. If there is no other reasonable accommodation available, the accommodation request may be denied.

3. How do we ensure that students receiving medical accommodation are not unintentionally or intentionally excluded from class participation

a. Example: Students with an accommodation are not well received in the class. Ensuring that we do not violate privacy, their accommodation will not be shared. What happens if students do not want to sit in proximity with them, even if 6 feet away? What recourse does the instructor have? We should be exercising social distancing rules with a student who is not wearing a mask or face covering due to an accommodation. The faculty member may want to share with the student that while they (the faculty) will not announce that the student has an accommodation, the student is free to do so, if they so desire.

4. What about “provisional” accommodations?

a. Provisional accommodations that allow a student not to wear a face mask or covering are not available for face covering exemptions as it is considered an undue burden for the institution.

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b. Provisional accommodations of allowing a student to have a recorded copy of the in-class lecture or being allowed to turn in work remotely may be granted until the permanent decision on accommodations has been made.

5. What if faculty have similar accommodations to not wear face coverings and students do not feel comfortable in that class? Is it up to the chairs (and do they have such a right) to not schedule those faculty in F2F classes? Keep such faculty online?

a. If a faculty member has been approved for an exception to a face covering on the basis of disability, a student without an accommodation would have the choice to change sections or withdraw from the course. This is the case regardless of the situation. Students have the right to modify their schedules as they see fit.

6. What if faculty are uncomfortable with students in their classes who are permitted to not wear face coverings?

Transfer those students to other sections taught by different faculty? What if there are no other sections?

a. Students have the right to select their courses and can not be removed from classes on the basis of their disability.

Faculty would need to contact HR for employee accommodations.

7. What if there is more than one person with a face covering exception in the class, such as two students or a student and instructor?

a. All appropriate social distancing measures should be taken in order to create as safe an environment as possible.

DRS, Human Resources, and the Dean of Students and/or Dean of Academic Affairs office will engage in an interactive process to assist with determining the best recourse possible for all parties involved.