Legal Considerations for the Upcoming School Year

To Our School Board Community:

Another school year is about to start, one we hoped would start without Executive Orders, last minute guidance and unclear recommendations; in other words one we hoped would start with some normalcy.  Sadly, here we are again starting a new school year with another Executive Order and “hints” of recommendations and guidance to come. As you prepare for the new school year and school board meetings, please keep the following in mind:

Indoor Mask Requirement

On August 6, 2021 Governor Murphy announced masks for all to start the 2021—2022 school year regardless of vaccination status. This announcement follows the July 27, 2021 CDC recommendation for universal indoor masking for all teachers, staff, students and visitors to K-12 schools, regardless of vaccination status. The Governor emphasized that this will not be a permanent restriction and will be lifted when conditions allow.

                All Individuals in Schools Regardless of Whether Public, Private or Parochial must wear Masks

 Specifically,  Executive Order (“EO”) 251 states that all public, private, and parochial preschool    programs and elementary and secondary schools, including charter and renaissance schools    must maintain a policy regarding mandatory use of face masks by staff, students and visitors in the indoor portion of the school district premises

                There ARE Exceptions to the Mask Requirement

The EO allows for the following exceptions:

a. When doing so would inhibit the individual’s health, such as when the individual is exposed to extreme heat indoors;

b. When the individual has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove a face masks without assistance;

c. When a student’s documented medical condition or disability, as reflected in an Individualized Education Program (IEP) or Educational Plan pursuant to Section 504 of the Rehabilitation Act of 1973, precludes use of a face mask;

d. When the individual is under two (2) years of age;

e. When the individual is engaged in activity that cannot physically be performed while wearing a mask, such as eating or drinking, or playing a musical instrument that would be obstructed by a face mask;

f. When the individual is engaged in high-intensity aerobic or anaerobic activity;

g. When a student is participating in high-intensity physical activities during a physical education class in a well-ventilated location and able to maintain a physical distance of six feet from all other individuals; or

h. When wearing a face mask creates an unsafe condition in which to operate equipment or execute a task.

                How to Evaluate Exception Requests?

These are essentially the same exceptions that are in place from last year. At this time there is no guidance on how to consider requests for exceptions, nor is it clear if exceptions may be provided through Individual Health Plans. If Parents contact Child Study Teams or 504 Coordinators, those individuals should review the students documented disability to determine if it may preclude the use of a mask. (Just like last year) If a Parent of a child who does not have an IEP or a 504 contacts the School regarding a medical exception for a mask, such request should be accompanied by a physician’s note that is reviewed and verified by your School Physician. A note is not a guaranteed automatic exception to the Mask requirement.

School Bus Mask Requirement

EO 251 also states, that it does not impact the obligation of any school district to comply with requirements issued by the CDC on masking on school district transportation. (School Buses) All individuals on school buses (staff and students) are required to wear masks under the CDC Order dated February 1,  2021.

                Exceptions to School Bus Mask Requirement

  The Order allows for the following exceptions:

                -While eating, drinking, or taking medication, for brief periods;

                -While communication with a person who is hearing impaired when the ability to see the mouth is essential for communication;

                -If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance;

                -A person with a disability who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disability Act (42 U.S.C. 12101 et seq.)

                -A person for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or federal regulations.

                How to Handle Exceptions?

These are essentially the same exceptions that are in place from last year. If Parents contact Child Study Teams or 504 Coordinators, those individuals should review the students documented disability to determine if it may preclude the use of a mask. (Just like last year) If a Parent of a child who does not have an IEP or a 504 contacts the School regarding a medical exception for a mask, such request should be accompanied by a physician’s note that is                 reviewed and verified by your School Physician. A note is not a guaranteed automatic exception to the Mask requirement.

Are Executive Orders a Law?

EOs are signed by the Governor of New Jersey and have the full force of law. EOs are executed pursuant to the Governor’s emergency powers and do not require legislative approval to be in effect. In addition, N.J.S.A. § App. A:9-40 provides in pertinent part, the Governor is authorized to make, amend and rescind orders, rules and regulations as in this act provided, and it shall be unlawful for any municipality or other subdivision or any other governmental agency of this State to adopt any rule or regulation or to enforce any such rule or regulation that may be at variance with any such order, rule or regulation established by the Governor. Also, N.J.S.A. § App. A:9-45 provides in pertinent part, the Governor is empowered to make such orders as are necessary to meet the various problems presented by any emergency. All such orders, rules and regulations when established shall be forthwith promulgated by proclamation of the Governor, which promulgation shall be deemed to be sufficient notice to the public. All such orders, rules and regulations when promulgated shall be binding upon all political subdivisions, public agencies, public officials and public employees of this State. All such orders, rules and regulations having to do with the conduct of persons which shall be adopted by the Governor and promulgated as provided herein shall be binding upon each and every person within this State.

                Are Schools Required to Follow the Executive Order?

 Yes. Schools are required to follow the EO.

                What Happens if Schools Do Not Follow the Executive Order?

 The EO itself provides for Penalties:       

N.J.S.A.§ App. A:9-49 provides a penalty of a disorderly person’s offense for “any unauthorized or otherwise unlawful act during the threat or imminence of danger in any emergency that jeopardizes the health, welfare and safety of the people.” Potential penalty of up to $1,000 fine, up to 180 days in the County Jail, Probation and Court Costs and Fees for failing to follow EO 251.

The Board of Education and its Administration are obligated to follow the law:

N.J.S.A. 18A:11-1 requires the Board of Education to follow the law.

N.J.S.A. 18A:12-24.1 (a) school code of ethics provides that a school board member shall uphold and enforce all laws, rules and regulations.

In addition there are financial considerations for the Board:

                N.J.S.A. 18A:55-2 provides that the Commissioner of Education shall direct the State treasurer to              withhold funds payable by the State from any district which fails to obey the law or the rules or   directions of the State Board or the Commissioner. Also the Executive County Superintendent          may direct the treasurer of school monies to withhold money whenever the board of education,           any officer thereof, or the legal voters of any school district, or any board or officer of the     municipality in which any such school district is situate, shall neglect or refuse to perform any     duty imposed upon such board, officer, or legal voters.

                What is the Difference Between an Executive Order and Guidance?

Executive Orders are enforceable by law enforcement. Guidance, such as the DOE Road Forward are not mandatory and not enforceable by law. However, the DOE and DOH both state “Compliance is Expected” when it comes to Guidance issued by their offices.

School Board Options When It Comes to the Mask Mandate?

School Boards are required to follow EO 251. However, School Boards should be prepared for opposition regarding the Mask Mandate, whether that opposition is from fellow School Board Members or the Public, there is little the School Board can do. School Boards and Superintendents should remind the public that the Mask Mandate comes from Governor Murphy and if the public has a complaint they should address concerns to him. As a School Board, if the majority of the School Board agree, they can  write a letter or pass a resolution asking Governor Murphy to make Masks Optional or allow Local Schools to Decide. Agreeing or disagreeing with EO 251 is an individual School Board decision, but regardless of whether a School decides to advocate for a different position on Mandatory Masks Indoors, the School must follow EO 251 as long as it is in place.  Furthermore, other groups have challenged Governor Murphy’s EO power, in those cases the Courts have found that the EOs are rationally related to the goal of protecting the public during the emergency and found in favor of the Governor.

                Are Masks Required at School Board Meetings?

In Prior EOs, specifically EO196, it was clarified that Local Boards of Education meetings are local legislative proceedings and are not subject to capacity limits of prior EOs. In addition, EO 251 provides for Masks Indoors for the 2021-2022 School Year. Further the State website clarifies, “all students, educators, staff, and visitors will be required to wear face masks inside of school buildings, regardless of vaccination status, for the start of the 2021-2022 academic year.” School Board Meetings are public legislative events, not part of the academic program year. Therefore,                 absent an EO requiring indoor masks, School Boards should not attempt to bar individuals who do not wear masks at their meetings. However, School Boards can choose to wear masks as a group in solidarity with their staff and students who are required during the school day to wear masks.

                Tips for School Board Meetings

                -Remind the public regarding the “rules” for public comment (time limits, order, etc..).

                -Read your policy regarding public participation at meetings

                -Remember the Board President can “gavel” members of the public failing to follow rules.

                -There is a specific process to find an attendee “out of order”

                -Any Board Member can request a recess if things are out of hand.

                -Public Comment is not public debate or a question and answer session.

                -Remind the Public you are required to enforce EO 251, if they have concerns contact the            Governor.

                -Being prepared for the meeting and Creating an Orderly environment is KEY.

No Permanent Virtual Instruction

Parents or guardians WILL NOT be able to opt children out of in-person instruction as allowed for the 2020-2021 school year. Will this change? maybe? On August 11, 2021 the New Jersey Department Education (“DOE”) issued guidance to Schools regarding limited instances for virtual instruction, of which they “expect” Schools to comply with.

                Virtual Instruction in Limited Circumstances?

The DOE provided guidance on virtual instruction in limited circumstances. Specifically, where an individual student, group of students, or entire class(es) are excluded from school due to meeting the New Jersey Department of Health (“DOH”) COVID-19 exclusion criteria, Schools are strongly encouraged to immediately provide virtual or remote instruction to those students in a manner commensurate with in-person instruction. The DOE reminded Schools that over the last 17 months, Schools have employed immense creativity and innovation in delivering high-quality education to students in their homes. The DOE stated it is their expectation that Schools will continue to employ such strategies to ensure that students are able to continue their educational progress even when excluded from school due to COVID-19.


The DOE also reminded Schools that they must continue to account for attendance of   quarantined students in accordance with their local attendance policies.

                Medical Home Instruction

The Road Forward reminds Schools that although there is not a permanent virtual instruction option for students, students with underlying health conditions that may make them more susceptible to or exacerbate the symptoms of COVID-19 may be eligible for home instruction pursuant to law. Under the law if a student is confined to home due to a temporary or chronic health condition which prevents them from attending school, they may submit written documentation from the student’s physician to the School confirming a need for confinement for 10 consecutive school days or 15 cumulative days or more during the school year. Such note is reviewed by the School and the School Physician who will verify the need for home instruction or deny the request.


Presently, only students 12 or older are eligible to be vaccinated. Schools are encouraged to have a system in place to determine the vaccination status of students and staff, however, if a School is unable to determine the vaccination status of individual students or staff, those individuals should be considered not fully vaccinated. In addition, the Road Forward Guidance states Schools should “actively promote vaccination for all eligible students and staff.” Recently Governor Murphy alluded to the fact that  they are working on a plan for School Staff to be vaccinated or require routine mandatory testing. As a District you can “partner” with an outside agency to encourage and provide vaccines to your staff and students, but you should not have your school nurses vaccinate school staff and students.

Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests.  In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders.  Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

As always, please contact us with any questions. We will continue to do our best to keep you updated in the coming days and weeks.