EDUCATION LAW CLIENT MEMORANDUM

To: Wake County Public Schools Board of Education and Superintendent Cathy Q. Moore
From: Jonathan Blumberg and Jason Weber
Date: July 30, 2021
Re: Legal Questions Raised by July 29, 2021, NCDHHS StrongSchoolsNC Public Health Toolkit (K-12)

Dear Board Members:

As you know, Governor Cooper and the North Carolina Department of Health & Human Services (NCDHHS)
released a new version of the StrongSchoolsNC Toolkit on July 29, 2021 (available here). It is effective July
30, 2021 at 5:00pm. The new Toolkit does not directly require school districts to adopt any specific health
and safety practices. Instead, it provides strategies for school districts to consider when developing their
own local COVID-19 related health and safety measures. The strategies are organized into two different
categories: (1) those that SHOULD be implemented by all schools, and (2) those that school leaders COULD
CONSIDER adopting. Note that “should” does not mean “shall” in this context. According to the Toolkit,
“NCDHHS strongly advises that school leaders adopt all the strategies in the SHOULD sections.” The
strategies in the COULD CONSIDER category “provide additional layers of prevention and that, if
implemented, will further reduce the risk of COVID-19 exposure and spread.”

Board members and staff have raised a number of legal questions with respect to the new/revised Toolkit.
These questions primarily center around face coverings, vaccines, and testing. The purpose of this
memorandum is to provide answers to these questions and help guide the Board and administration as
you develop local requirements for the Wake County Public Schools. This analysis is up to date as of July
30, 2021, but is subject to change if local, state, or federal authorities adopt new legal mandates impacting
public schools.

FACE COVERINGS

1. Are there currently any federal or state legal requirements to wear face coverings in public
school buildings?

No. In its most recent guidance, the CDC recommends “universal indoor masking for all teachers, staff,
students, and visitors to K-12 schools, regardless of vaccination status.” In the new Toolkit, NCDHHS states
that schools “should” “require all children and staff in schools K-12th grade to wear face coverings
consistently when indoors (unless an exception applies).”

However, these are recommendations, not mandates. The CDC frames its recommendations as “key
prevention strategies.” The NCDHHS “strongly advises” that schools adopt strategies in the “should”
category of the Toolkit but does not require it. Therefore, school districts have discretion to decide
whether, and to what extent, they will require face coverings in schools and other school system buildings.
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THARRINGTON SMITH, LLP

2. Are there currently any federal or state legal requirements to wear face coverings on school
transportation?

Yes. The CDC issued an Order on January 29, 2021, that requires all passengers on public transportation
as well as operators to wear a face covering regardless of their vaccination status. According to the CDC,
the Order applies to public and private schools (see FAQ updated on June 10, 2021, which includes the
following question and answer: “Are masks required on school buses? Yes, passengers and drivers must
wear a mask on school buses, including on buses operated by public and private school systems, subject
to the exclusions and exemptions in CDC’s Order”). Those exemptions include individuals who, because
of a disability, cannot safely wear a mask.

The CDC’s Order was published in the Federal Register on February 3, 2021 and is in effect until it is
modified or rescinded. The Order has not, to our knowledge, been challenged through litigation, and we
are not aware of any legal authority to the contrary. Furthermore, the NCDHHS Toolkit expressly
references the CDC’s Order. As stated in the Toolkit, all passengers and drivers on school transportation
vehicles should wear a mask “regardless of the mask policy at school.”

3. Do school districts have independent authority to require face coverings?

Yes. Local boards of education have broad authority over the management of schools in their
districts. G.S. 115C-36 gives local boards “[a]ll powers and duties conferred and imposed by law
respecting public schools, which are not expressly conferred and imposed upon some other official” and
further grants to local boards “general control and supervision of all matters pertaining to the public
schools in their respective administrative units.” This authority has been repeatedly recognized by the
courts. See, for example, Coggins v. Bd. of Educ. of City of Durham, 223 N.C. 763 (1944) (“It is generally
held that local school authorities have the inherent power to make rules and regulations for the discipline,
government, and management of the schools and pupils within their district.”) See also Wake Cares v.
Wake County Bd. Of Educ. 190 N.C.App. 1 (2008), which itself cites to Coggins, (“[T]he General Assembly
may delegate to local administrative units the power to make such rules and regulations as may be
deemed necessary or expedient, and when so delegated it is peculiarly within the province of the
administrative officers of the local unit to determine what things are detrimental to the successful
management, good order, and discipline of the schools in their charge and the rules required to produce
those conditions.”).

This authority is broad enough to encompass a district’s ability to establish health and safety requirements
for their schools, so long as those requirements do not contravene applicable law. As of the date of this
memo, we are not aware of any state or federal laws, regulations, or court decisions that would restrict a
North Carolina school district’s authority to require face coverings. Furthermore, the recommendations
from the CDC and NCDHHS, which leave final decision-making to local school districts, support and
recognize this authority.

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4. Does the Federal Food, Drug, and Cosmetic Act (FDCA) prohibit school districts from requiring
face coverings?

No. The argument that the FDCA prohibits an organization from requiring face coverings centers on 21
U.S.C. 360bbb-3. This is a section within the FDCA that governs when and how the U.S. Secretary of Health
and Human Services may authorize the “emergency use” of a drug, device, or biological product that has
not gone through the FDA’s full approval process. Subsection (e) of 21 U.S.C. 360bbb-3 requires the
Secretary of HHS to establish certain conditions on emergency use authorizations, if determined necessary
and appropriate by the Secretary. However, it does not expressly apply to any other individual or entity,
and therefore does not apply to the WCPSS. It also does not create any individual rights. Furthermore,
there is nothing in the text of Section 360bbb-3 that indicates it was intended to supersede, prohibit, or
otherwise restrict any state and local emergency response measures and requirements, such as a local
school district’s requirement that face coverings be worn.

Finally, the U.S. Department of Justice recently issued an opinion stating that the EUA status of COVID-19
vaccines does not prevent government entities from imposing vaccination requirements. While the
USDOJ opinion refers only to vaccine requirements, the rationale would apply to face covering
requirements as well.

5. Does the Free Exercise Clause of the First Amendment prohibit school districts from requiring
face coverings?

No. The law in this area does not require religious exemptions from COVID-19 face covering requirements
and does not prohibit school districts from requiring face coverings in their schools. While the First
Amendment protects an individual’s right to free exercise of religion, that right is not unlimited. It is well-
settled that the First Amendment does not exempt citizens from complying with religion-neutral laws of
general applicability, particularly with regard to laws and rules designed to limit the spread of
disease. (See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944) and Employment Div., Dep't of Human
Res. of Oregon v. Smith, 494 U.S. 872 (1990)). So long as a school district’s face covering requirements do
not single out religion and obligate all students and other individuals in the district’s schools to the exact
same generally applicable requirements, the requirements will likely withstand a First Amendment
challenge.

6. Is there any pending legislation that school districts should be aware of that would impact
their authority to require face coverings?

Yes. Senate Bill 173, the “Free the Smiles Act” limits the Governor’s authority to require face coverings in
public schools and gives exclusive authority to determine the use of face coverings to local boards of
education. Among other things, the bill would require local boards that adopt a policy requiring face
coverings to revisit and vote at least once a month on whether the policy should be repealed or modified
for so long as the policy remains in effect. SB 173 was referred to a conference committee made up of
House and Senate members and has not been ratified by the General Assembly or presented to the
Governor.

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Districts should also be aware of House Bill 96. HB 96 would require health care providers to obtain
written parental consent before administering a vaccine that has been granted emergency use
authorization (such as the current COVID-19 vaccines) to an individual under the age of 18. The bill was
most recently referred to the Senate Rules Committee.

Finally, House Bill 572 which has been dormant since May 11, 2021 remains on the watch list. The bill is
entitled “An Act to Prohibit the Creation of a Vaccine Mandate by Use of an Executive Order or the
Rulemaking Process.” The bill includes language in keeping with its title.

VACCINES

7. Do school districts have the authority to require students to provide proof of vaccination in
order to receive an exemption from general face covering requirements?

Yes. Remember, school districts have broad discretion to decide whether and to what extent they will
require face coverings. If a district decides to exempt vaccinated students from its general face covering
requirements, the district may require students to provide proof of vaccination against COVID-19 in order
to receive an exemption. We are not aware of any law or regulation that prohibits this.

Individuals who object to requirements to provide proof of vaccination have generally cited to G.S. 130A-
152 and 130A-155. G.S. 130A-152 requires children to receive certain immunizations identified in the
statute and any others required by the Commission for Public Health. G.S. 130A-155 prohibits a child from
attending school (preK-12) unless the child’s parent provides a certificate indicating that the child has
received the immunizations required by G.S. 130A-152. The fact that COVID-19 is not listed in the
immunizations required by G.S. 130A-152 or by the Commission for Public Health is not determinative of
the question. The statutes impose vaccination requirements on parents/guardians and establish
consequences if they do not comply. The statutes do not in any way limit or prevent school districts from
requesting and/or requiring proof of any additional immunizations as a basis for obtaining an exemption
to a face covering requirement.

It is also important to put this question in context. If a school district decides to exempt vaccinated
students from its general face covering requirements, students who voluntarily choose not to provide
proof will not be excluded in any way from attending school in-person or from otherwise participating in
in-person school activities. They will just have to comply with the general requirement to wear a face
covering.

8. Do school districts have the authority to require staff to provide proof of vaccination against
COVID-19 in order to receive an exemption from general face covering requirements?

Yes. According to the EEOC, employers may ask employees to provide proof of vaccination against COVID-
19. See below for an excerpt from the EEOC’s guidance:

“K.9. Under the ADA, is it a “disability-related inquiry” for an employer to inquire about
or request documentation or other confirmation that an employee obtained the COVID-

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F: 919.821.1583 PO Box 1151 | Raleigh, NC 27602-1151

19 vaccine from a third party in the community, such as a pharmacy, personal health
care provider, or public clinic? (12/16/20, updated 5/28/21)

No. When an employer asks employees whether they obtained a COVID-19 vaccine from
a third party in the community, such as a pharmacy, personal health care provider, or
public clinic, the employer is not asking a question that is likely to disclose the existence
of a disability; there are many reasons an employee may not show documentation or
other confirmation of vaccination in the community besides having a
disability. Therefore, requesting documentation or other confirmation of vaccination by
a third party in the community is not a disability-related inquiry under the ADA, and the
ADA’s rules about such inquiries do not apply. However, documentation or other
confirmation of vaccination provided by the employee to the employer is medical
information about the employee and must be kept confidential.”

9. Do school districts have the authority to require students and staff to provide proof of
vaccination in order to reduce the amount of time they must quarantine if exposed to
COVID-19?

Yes. See analysis for Questions 7 and 8 above, which would also apply to a requirement to show
proof of vaccination in order to reduce the period of quarantine consistent with CDC and NCDHHS
guidance.

10. Do school districts have the authority to require students to become vaccinated
against COVID-19?

No. In North Carolina, certain vaccinations are statutorily required for students, and others can
be required by the Commission for Public Health (see G.S. 130A-152). As stated previously, local
boards of education have broad general statutory authority over matters not expressly conferred
to other government bodies under G.S. 115C-36 and 115C-40. However, the authority to mandate
additional student vaccinations as a condition of school attendance has been expressly conferred
by G.S. 130A-152 to the Commission for Public Health. Schools can certainly encourage student
vaccinations, and the NCDHHS Toolkit recommends that schools encourage vaccination. But, in
our opinion, school districts cannot require students to be vaccinated against COVID-19 unless
the Commission for Public Health does.

11. Do school districts have the authority to require staff to become vaccinated against
COVID-19?

Generally, yes. Employers may require employees to become vaccinated against COVID-19, subject to
consideration of employee requests for medical/disability-based accommodations under the ADA and
requests for religious accommodations under Title VII. This position is supported by the EEOC in its
guidance (see Question K.1).

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F: 919.821.1583 PO Box 1151 | Raleigh, NC 27602-1151

TESTING

12. Do school districts have the authority to require COVID-19 testing of student as a condition on
participation in athletics?

Yes, as long as the district considers requests for disability-based accommodations. Participation in sports
and other extracurriculars is optional, and students do not have a general right to participate in them. As
such, school districts may place generally applicable conditions on participation.

Furthermore, the CDC recommends screening testing for student athletes, coaches, and other staff who
are not fully vaccinated who participate in and support athletic activities. The recommendations are
broken down by the level of community transmission in the district and the level of transmission risk
associated with the sport. For districts with low or moderate transmission, the CDC recommends testing
for both high-risk sports (e.g., football) and low/intermediate-risk sports (tennis and baseball) at least
once per week. For districts with substantial or high transmission, the CDC recommends testing for high-
risk sports on a twice per week basis, and testing for low/intermediate risk sports on a once per week
basis. The NCDHHS Toolkit also states that schools may consider screening testing for student athletes
and staff who are not fully vaccinated. Informed parent consent would be required for testing, but a
district could choose to not allow participation in athletics for any student whose parent does not consent.

13. Do school districts have the authority to require staff to be tested for COVID-19?

Yes. According to the EEOC, employers may require employees to be tested for COVID-19 before initially
permitting them to enter the workplace and/or periodically to determine if their presence poses a direct
threat to others. See below for an excerpt from the EEOC’s guidance:

“A.6. May an employer administer a COVID-19 test (a test to detect the presence of
the COVID-19 virus) when evaluating an employee’s initial or continued presence in
the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about
updates to CDC guidance)

The ADA requires that any mandatory medical test of employees be “job related and
consistent with business necessity.” Applying this standard to the current circumstances
of the COVID-19 pandemic, employers may take screening steps to determine
if employees entering the workplace have COVID-19 because an individual with the virus
will pose a direct threat to the health of others. Therefore, an employer may choose to
administer COVID-19 testing to employees before initially permitting them to enter the
workplace and/or periodically to determine if their presence in the workplace poses a
direct threat to others. The ADA does not interfere with employers
following recommendations by the CDC or other public health authorities regarding
whether, when, and for whom testing or other screening is appropriate. Testing

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F: 919.821.1583 PO Box 1151 | Raleigh, NC 27602-1151

administered by employers consistent with current CDC guidance will meet the ADA’s
“business necessity” standard.

Consistent with the ADA standard, employers should ensure that the tests are considered
accurate and reliable. For example, employers may review information from the U.S.
Food and Drug Administration about what may or may not be considered safe and
accurate testing, as well as guidance from CDC or other public health authorities. Because
the CDC and FDA may revise their recommendations based on new information, it may
be helpful to check these agency websites for updates. Employers may wish to consider
the incidence of false-positives or false-negatives associated with a particular test. Note
that a positive test result reveals that an individual most likely has a current infection and
may be able to transmit the virus to others. A negative test result means that the
individual did not have detectable COVID-19 at the time of testing.

A negative test does not mean the employee will not acquire the virus later. Based on
guidance from medical and public health authorities, employers should still require–to
the greatest extent possible–that employees observe infection control practices (such as
social distancing, regular handwashing, and other measures) in the workplace to prevent
transmission of COVID-19.”

14. Do school districts have the authority to require students and staff to submit proof of a
negative COVID-19 test in order to reduce the amount of time they must quarantine if
exposed to COVID-19?

Yes. We are not aware of any law or regulation that would prohibit this approach and believe it is
reasonably related to valid health and safety concerns.

MISCELLANEOUS

15. Do school districts have flexibility to allow or limit visitors?

Yes. Remember, the new Toolkit is designed to give school districts flexibility. It contains strategies that
school leaders “should” adopt/require, as well as strategies that school leaders “could consider”, but it
does not itself contain any requirements. NCDHHS “strongly advises” school leaders to adopt all strategies
in the “should” category.

Regarding visitors, the new Toolkit removed from the prior version of the Toolkit the requirement to “Limit
nonessential visitors”. Finally, the Toolkit includes a provision that states all schools should consider
“allowing visitors and volunteers to resume normal activities if they follow the same protocols as staff and
students.”

16. Does the Toolkit require physical distancing for students and staff?

No. Page 11 of the Toolkit states that schools should:

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F: 919.821.1583 PO Box 1151 | Raleigh, NC 27602-1151

• Maintain a minimum of three (3) feet of distance between K-12 students who are not fully
vaccinated within school settings to the greatest extent possible without excluding students from
full-time, in-person learning.

• Maintain a minimum of six (6) feet between adults (teachers/staff/visitors) and students and
between adults (teachers/staff/visitors) who are not fully vaccinated within school settings to the
greatest extent possible.

Please note that the recommendations for physical distancing include a caveat that it should be
implemented “to the greatest extent possible without excluding students from full-time, in-person
learning.” Note also that these recommendations do not distinguish between masked and unmasked
individuals. The recommendations simply apply to individuals who are not fully vaccinated. Based on the
plain language, and the text box immediately preceding the recommendation (which references
distancing “combined with indoor mask wearing”), we believe NCDHHS’s intent was for the
recommendation to apply to individuals regardless of whether or not they are wearing a face covering.

17. Do school districts maintain limited immunity from claims related to COVID-19?

Yes. G.S. 99E-70 through 72 (which was enacted last year) provides that no person (including school
districts) shall be liable for “any act or omission alleged to have resulted in the contraction of COVID-19”
so long as the person (1) provides reasonable notice of the actions taken “for the purpose of reducing the
risk of transmission of COVID-19 to individuals present on the premises;” and (2) does not act with “gross
negligence, willful or wanton conduct, or intentional wrongdoing.” The statute applies to claims made no
later than 6 months after the expiration or rescission of Governor Cooper’s declared State of
Emergency. Even though the statewide mask mandate in EO 220 is expiring, the state of emergency will
continue.

P: 919.821.4711 150 Fayetteville Street | Suite 1800 | Raleigh, NC 27601

F: 919.821.1583 PO Box 1151 | Raleigh, NC 27602-1151