Mask Policies in Virginia Schools

In light of Governor Youngkin’s Executive Order eliminating Virginia’s school mask mandate, some school districts are electing to continue requiring masks in schools while others are making masks optional.  Below is a list of mask policies in Virginia schools and school districts:

Masks Still Required    —                                                                                 Masks Optional

  • Albemarle County                                                                                         Augusta County
  • Nelson County                                                                                                Orange County
  • Rockingham County                                                                                    Page County
  • Rockbridge County                                                                                      Augusta County
  • Fairfax County                                                                                                Shenandoah County
  • Frederick County                                                                                          Rappahannock County
  • Waynesboro City                                                                                           Bath County
  • Staunton City                                                                                                   Bedford County
  • Harrisonburg City
  • Lexington City
  • Winchester City                                                                                            Still Evaluating
  • Charlottesville City                                                                                     Fluvanna County
  • Alexandria City                                                                                              Louisa County
  • Fairfax County                                                                                               Amherst County
  • Loudoun County                                                                                           Buena Vista Public Schools

 Mask Policies in Virginia Schools and Immunocompromised Students

Due to the change in mask policies in Virginia schools, some parents of immunocompromised students are asking what’s next for them. There are concerns that sending their students into environments where not everyone is masked poses significant risks for their students. How should parents address the current Virginia school mask policy if they have immunocompromised students?

Virginia School Mask Policy and Suggestions for Parents

  • Check with your child’s special education teacher about what the IEP provides
  • Ask the school administration for a 504 plan

Parents with students who already have an Individualized Education Program (IEP) may have some built-in protections, as the involved school system may already be aware of the student’s compromised immunity. Parents whose children have IEPs and are concerned about the well-being of their students in an unmasked environment should first reach out to their children’s special education teachers.  If the parents’ concerns are not addressed to their satisfaction, following up with the building administrator, and finally the Director of Student Services, may offer a solution. These channels should be followed before involving legal counsel.

For families with immunocompromised students who don’t have an IEP or a current 504 plan, parents may ask school administration for a 504 plan for their child.  A 504 plan allows children who don’t qualify for special education services to access services and modifications to the learning environment so that the disadvantaged student’s education equals that of other students.

Virginia School Mask Policy and 504 Plan Options

Possible options for families with students who have a 504 plan include but are not limited to:

  • Requesting that the student be allowed access to mask-only classrooms
  • Requesting virtual or in-home instruction
  • Transferring to a school district that continues to enforce the mask mandate

The Virtual Option and Students with IEPs or 504 Plans

For families with students who have IEPs or 504 plans, schools and parents may be interested in a virtual offering for students with compromised immunity.  However, in February 2021, the Virginia General Assembly mandated in-person instruction to begin July 2021.

The law requires each school board to offer in-person instruction to each student enrolled in the local school division for the minimum number of instructional hours. The bill requires each school board to provide in-person instruction to the maximum extent practicable while employing reasonable mitigation strategies to reduce transmission of COVID-19. The law also required the Virginia Department of Education to establish benchmarks for successful virtual learning.

Despite the overarching intent of the law to provide in-person instruction, the wording of the new law seems to allow for the possibility of virtual instruction in situations where the health of students is at risk.

Lawsuit Opposing the Virginia School Mask Policy

As local school districts scramble to respond to Youngkin’s executive order, one group of 13 Chesapeake parents has already filed a lawsuit against Governor Youngkin, the Virginia State Health Commissioner, Chesapeake City School, as well as several other named defendants. The parents are asking the Virginia Supreme Court to step in and stop the implementation of the Governor’s Executive Order before there is “irreparable harm and damage” to their students.

Federal Disability Law and School Masking Policies

Do disability laws offer a legal right for immunocompromised students to receive an accommodation of being protected by masks in schools?  Some people believe the answer to that question is yes.  Some experts on this subject have indicated that Section 504 of the Rehabilitation Act of 1973 protects qualified individuals in public schools against discrimination.  Additionally, Title II of the Americans with Disabilities Act protects the same population in state and local governmental entities.  As a result of these protections, some believe that a modification requiring masks in class to allow immunocompromised students to participate in school programs meets the ADA’s definition of reasonable accommodation.

The Take-Away

The take-away for parents of immunocompromised students is to start with your child’s principal or building administrator to see if reasonable accommodations can be agreed upon. If you do not receive a satisfactory result, then contact a director of special education or student services within the administration’s central office. Then, the school’s superintendent would be next on the list of contact. If all of the above fails, parents may consider discussing a potential suit against the school system with an attorney who litigated school law or civil rights cases.

Ritchie Law Firm is a personal injury law firm devoted to helping individuals who have suffered serious and catastrophic injuries or lost a loved one as a result of someone else’s negligence. Ritchie Law Firm serves all of Virginia, while helping clients in cities and surrounding areas of Harrisonburg, Charlottesville, Staunton, and Winchester also serves clients in West Virginia, including Martinsburg, WV.

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