State and federal government agencies have published updated guidance regarding face coverings as a result of the recent uptick in COVID-19 cases. This Client Alert highlights this guidance and potential next steps.
Here is a list of the Advisories and Guidance referenced in this Alert:
· July 30, 2021, Guidance for Districts and Schools: Fall 2021 from the Department of Elementary and Secondary Education (DESE)
· July 30, 2021, Advisory Regarding Face Coverings and Cloth Masks from the Department of Public Health (DPH)
· June 14, 2021 reissuing of Order Regarding Face Coverings to be Worn in Certain Settings from the DPH
· January 29, 2021, Order: Wearing of Face Masks While on Conveyances and at Transportation Hubs from the Centers for Disease Control and Prevention (CDC)
· July 27, 2021, Interim Public Health Recommendations from the CDC
Q. Are individuals still required to wear face coverings indoors?
A. Yes, in certain locations. The Massachusetts DPH continues to require that all persons over the age of 5 years old, regardless of vaccination status, wear face coverings while indoors in the following settings: 1) healthcare facilities and practice locations that are either licensed by DPH or have providers licensed by a DPH or Division of Professional Licensure Board; 2) congregate care facility or program; 3) emergency shelter programs including homeless shelters and veterans’ shelters; 4) houses of correction, jails ,prisons, and other correctional facilities; 5) healthcare and day services and programs operated, licensed, certified, regulated, or funded by the state and authorized under the Executive Office of Health and Human Services or its agencies; 6) home health care workers including personal care attendants in home-based and community settings.
The requirement does not apply to those for whom wearing a face covering creates a health risk or is not safe because of a medical or mental health condition or disability that advises against wearing a face covering or otherwise prevents them from doing so, those who are on supplemental oxygen, and those for whom wearing a face covering would impair communication by or with a person who has a hearing impairment or other disability.
Additionally, face coverings are required regardless of vaccination status on public and private transportation including on the MBTA, commuter rail, buses, ferries, airplanes, while in rideshares and taxies per Order of the CDC, subject to similar exemptions described above.
Q. What do federal and state official recommend as far as wearing a face covering in public indoor settings?
A. On July 27, 2021, the CDC updated information for fully vaccinated persons given new evidence of the transmissibility of the Delta variant of the COVID-19 virus. The CDC recommends that fully vaccinated persons wear a face covering in public indoor settings in areas of “substantial or high transmission” and suggests that fully vaccinated persons may want to wear a face covering regardless of the level of transmission if they have certain medical conditions or live with someone who has certain medical conditions or is otherwise unvaccinated.
The Massachusetts DPH released an advisory on July 30, 2021 in light of the new information provided by the CDC and in order to maximize protection of individuals from the Delta variant of the COVID-19 virus. The advisory recommends that all unvaccinated adults wear a face covering. It further advises that all fully vaccinated persons should wear face coverings when indoors (other than their home) if they have a weakened immune system, are at increased risk of severe disease because of age or an underlying condition, or if someone in their household has an increased risk of severe disease because of age or underlying condition or has a weakened immune system or is otherwise unvaccinated.
Q. Where in Massachusetts are there areas of “substantial or high transmission?”
A: As of August 4, 2021, the only Massachusetts counties not considered an area of substantial or high transmission by the CDC are Franklin and Hampshire counties in Western Massachusetts.
Q. Has state or federal government mandated the use of face coverings in schools?
A: Not currently. The CDC recommends universal indoor face coverings for all teachers, staff, students, and visitors regardless of vaccination status.
The Massachusetts DESE and DPH strongly recommend that all students K-6 wear face coverings when indoors (with exemptions for medical and behavioral conditions). DESE and DPH also strongly recommend that unvaccinated staff in all schools, unvaccinated students grades 7 and above, and unvaccinated visitors wear face coverings indoors. DESE and DPH recommend that schools allow vaccinated students to remain without face coverings, but that any child or family who prefers to wear one while at school be supported in their choice.
Q. If DESE and DPH do not require the use of face coverings in schools, can municipalities require them?
A. Yes. Municipalities have the legal authority to require the use of face coverings in schools (subject to certain exemptions) regardless of the DESE and DPH guidance. There are a variety of legal mechanisms by which this could occur (e.g. policies, orders, regulations). Please contact your Miyares & Harrington attorney to discuss what is the best approach for your community.
Q. Can we mandate that members of the public wear face coverings in Town buildings and other public indoor areas not already subject to state and federal orders?
A. Yes. While the most recent state and federal guidance does not mandate that members of the public wear face coverings in municipal buildings or other public indoor areas not already subject to these requirements, there is nothing that prohibits municipalities from enacting such requirements (subject to certain exemptions). There are a variety of legal mechanisms by which this could occur (e.g., policies, orders, regulations). Please contact your Miyares & Harrington attorney to discuss what is the best approach for your community.
Q. Are we required to wait until there are a certain number of positive cases in-town before enacting such requirements?
A. No. While many communities are taking a “wait and see” approach to face covering requirements and mandates, there is no threshold number of cases required before taking such action. Several municipalities in Massachusetts have already begun to issue advisories and mandates regarding the use of face coverings indoors.
Please contact us as further questions arise.
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