The Legal Brief: Texas Lifts Mandate Requiring Masks

On March 2, 2021, Governor Abbott issued Executive Order GA-34 which lifts the Texas mask mandate. Under the order, individuals are strongly encouraged to wear masks wherever it is not feasible to maintain six feet of social distancing from another person not in the same household; however, the order explicitly states that no person may be required by any jurisdiction to wear or to mandate a mask. The order takes effect March 10, 2021.

Under the order, TEA’s authority to implement operational requirements for public schools remains in effect (e.g., TEA’s Public Health Guidance). As a result of the lifting of the state order on masks, TEA has updated its Public Health Guidance to permit local school boards to determine their local mask policy.

What Issues Should Districts be Mindful of When Considering Their Mask Policy?

As districts consider their local mask polices, one of the considerations to be made is the risk of litigation and grievances for COVID-19 related claims. COVID-19 related workers compensation claims, workplace safety standards, employment and disability laws, and accessibility standards still must address the needs of both workers and students..

Worker’s Compensation Considerations

Under the Texas Workers’ Compensation Act, all public and federal employers are required to carry workers’ compensation insurance coverage. A compensable injury is “an injury that arises out of and in the course and scope of employment and for which compensation is payable.”

COVID-19 may be a compensable injury, if employees of school districts can show COVID-19 is present to an increased degree in district, actual exposure, and that the employee actually has the specific COVID-19 strain to which he/she was exposed at the district. Thus, currently the burden is on the employee to show that COVID-19 is a compensable injury. This burden may be easier for employees to meet if their district does not require masks and the employee is exposed to COVID-19 at work.

Senator Zaffirini recently introduced legislation to revise the Texas Labor Code to create a presumption that would entitle school district employees to workers’ compensation benefits related to COVID-19. Specifically, SB 612 seeks to presume that a “school employee” (defined as anyone paid by the district other than a contractor) contracted COVID-19 on or after February 1, 2020, contracted it within the course and scope of their employment if the following conditions are met:

1. The employee interacts with a student or employee who is later diagnosed with COVID19; and

2. Contracts COVID-19 not later than the 14th day following the date of the interaction with the student or other employee diagnosed with the disease.

The proposed legislation, if adopted, would shift to the insurance carrier or school district the burden to disprove that a case of COVID-19 contracted by a school employee meeting the prerequisites of the presumption. If SB 612 is passed, requiring masks may help mitigate the risk of exposure for worker’s compensation claims.

Safety Standard Considerations

Currently, the Center for Disease Control (CDC) recognizes that wearing masks helps to mitigate and prevent the spread of COVID-19. Although the CDC recommends the wearing of masks, especially when physical distancing is not feasible, it does not require public schools to mandate masks. Nonetheless, if a district is considering not requiring masks, it should be prepared to articulate why it is not following CDC guidance on masks and what other safety protocols the district is taking to mitigate the risk of exposure of employees and students.

ADA Considerations

The Americans with Disabilities Act (ADA) requires disabled people to be “reasonably accommodated” when working with employers, public businesses and the government.

If an employee with a disability requests a reasonable accommodation under the ADA because of a disability, districts will need to work with the employee to determine appropriate accommodations. Masks are one option to consider. Employees may assert that they have a compromised immune system that requires them to wear a mask and/or requires others around them to wear a mask. Whether the employer must allow the use of a mask and/or require others to wear masks to accommodate a person with a disability will depend on the situation and districts may also be required to explore alternative accommodations, such as private workstations, on a case-by-case basis. Districts changing its mask policy may experience an increase in requests for accommodations under the ADA.

Districts must provide reasonable accommodations not just for employees and students, but also for parents and any other persons entering the school who may need an accommodation due to a disability. As a result, district considering changing their mask policy should consider: (1) including reasonable accommodations as integral components of their policy and procedures; and (2) ensuring that all persons entering the school have equal access, including those who have a higher risk of complications due to COVID-19.