Author: Frankie Caswell

Masks & Schools:  Q & A

When does the mask mandate for schools expire?

The State mask mandates for both schools and the general public were adopted pursuant to temporary regulation.  The Commissioner of Health set an expiration date of February 10, 2022, for the public mask mandate.  There was no such date expressed by the Commissioner for the school mandate, but because a temporary regulation only has a life of 90 days, it is set to expire by operation of law on February 21.  Another regulation would need to be adopted to extend it.
                         

If there is no State mandate, can schools mandate masks for students and visitors?
No. Boards of education only have the powers and obligations given to them by the Legislature. To respond to a health situation, either the state or county department of health needs to declare there is a situation requiring a response in schools. If the state mandate is lifted, then the ability for schools to respond with a mandate is lifted with it.  Boards of education do not have inherent power to impose a general mask mandate for the students, visitors and employees of their district.  This is not to say a board of education might not try.  But if it did, the mandate likely would not survive a challenge if one is brought before the courts or the Commissioner of Education.  Employees, however, should comply with district policies while they are in place or risk discipline.

If there is no State mandate, can schools mandate masks for employees?
Not without collective bargaining with the respective unions. If the mandate goes away, we believe that a directive to wear masks would be similar to an imposition of a dress code that would require collective bargaining.

Can anyone other than the State adopt a mask mandate applicable to schools?
Counties through their respective health agency could do so.  If a county adopted a mask mandate that included schools, through proper processes, it should withstand scrutiny, and a school district would need to comply with such mandate.

Can a mask mandate be negotiated?
As discussed above, in New York, a requirement unilaterally imposed by a school district that employees must, or must not, wear masks would be subject to negotiation.  But in New York, a demand to negotiate with the union about a mask mandate for students would likely be deemed to be a “prohibited” demand, if there is no state or county health declaration any longer.   As described above, the district itself would not have the power to impose such mandate on students without a health declaration so it could not do so as a product of bargaining.

Thank you.