Essential Analysis of Illinois School Reopening Order and Guidance

By executive order on June 4, 2020, Illinois Governor J.B. Pritzker authorized all public and nonpublic preK-12 schools the state to reopen after the completion of the 2019-2020 school term for limited educational purposes such as summer school. With that authority comes the obvious question of how logistically to do so. The executive order directs schools to comply with guidance from the Illinois State Board of Education and Department of Public Health and take other proactive safety measures outlined in the order. Examples of such measures include limiting individuals in one space to 10, ensuring social distancing “to the greatest extent possible,” ensuring appropriate hygienic practices, requiring use of PPE (including by students), and providing face coverings to all employees who cannot maintain social distance.

Shortly after the executive order’s release, ISBE and IDPH issued updated guidance also addressing reopening. As explained in ISBE’s press release, the 29-page “Part Two – Transition Joint Guidance” document makes clear that in-person summer activities will require “extensive” social distancing, cleaning, and use of personal protective equipment for schools reopening for the summer. The guidance then describes in detail the requirements for reopening, including requirements for face coverings and PPE, frequent handwashing, checks for and exclusion of individuals with symptoms and temperatures before entering buildings, restrictions on borrowing or sharing items, and limiting gatherings to 10 or fewer while in Phase 3. This alert includes a chart summarizing the guidance’s discussion of many of these requirements. Because ISBE has expressly stated that the guidance also applies to Phase 4—when the number of people permitted in a single space increases from 10 to 50—the document is essential reading for all school leaders involved in the reopening process for both summer school and fall. 

 Both the executive order and the guidance reiterate that school boards and superintendents retain the right to decide whether to reopen, in consultation with public health departments. School leaders must weigh their ability to comply with these requirements and recommendations, which are extensive and have come on the eve of summer school, against the impacts of continued remote learning on their communities. School leaders should work with legal counsel to discuss the feasibility of adhering to these recommendations as well as many tangential concerns, including labor and employment impacts and special education implications, among many others.

Executive Order 40

As of May 29, 2020, all four health regions in the state moved into Phase 3 of the Restore Illinois plan for reopening. In line with the plan, Governor J.B. Pritzker issued Executive Order 40 authorizing all public and nonpublic preK-12 schools to reopen for limited educational purposes, such as summer school, following the completion of the 2019-2020 school term, as long as they comply with ISBE/IDPH guidance and take proactive safety measures.

The executive order identifies the following examples of proactive safety measures that schools should employ when reopening:    

• 10-Person Limit: Schools must comply with current public health guidance mandate that no more than 10 people be in one space at the same time as long as their region is in Phase 3. As noted previously, in Phase 4,this number will increase to 50 people.
• Social Distancing: The order directs schools, “to the greatest extent possible,” to comply with social distancing requirements including maintaining at least six feet between people and discouraging physical contact. As with recent CDC guidance for schools, this “to the greatest extent possible” language provides schools some flexibility to reopen even if social distancing is not possible in all circumstances. This is essential in schools, for example, where students often need close, even hands-on help from staff and may not, because of age and maturity, reasonable be expected to comply with requirements to be six feet apart from other students at all times. Although not stated in the executive order, schools should implement other tools, including face coverings, to help protect individuals in such situations.
• Increased Hygiene. The executive order refers to ensuring appropriate hygienic practices, including washing hands for 20 seconds as frequently as possible or using hand sanitizer, sneezing into sleeves or elbow (not hands), discouraging the sharing of personal items, and regularly cleaning high-touch surfaces.
• Personal Protective Equipment. The executive order requires the use of appropriate PPE, including face coverings by students, staff, and visitors who are over the age of two and able to medically tolerate a face covering. Note this differs from recent CDC recommendations for schools, which required only staff to wear face coverings. 
• Face Coverings. The order requires providing face coverings to all employees who are not able to maintain six-foot social distance at all times and, to the extent possible, make disposable masks available for all students. 

The executive order further notes that all public and nonpublic schools may continue to provide food and other non-educational services in addition to the limited in-person reopening. We recommend that schools continue to comply with any legal requirements regarding meal distribution and other services during the COVID-19 crisis.   

Finally, the executive order suspends the requirement that minors seeking employment certificates submit applications in person. 

ISBE/IDPH Updated Summer School Reopening Guidance

As previously noted, the ISBE and IDPH guidance addresses, in addition to summer school, several allowable activities for which schools may reopen now that we have reached Phase 3. These activities including behind-the-wheel instruction, extended school year, summer camps and programs, IEP meetings, case study evaluations, and professional development meetings, among others. The guidance continues to recommend, however, that if meetings and activities can be completed remotely they be done in that manner. 

In addition to reiterating and building on the 10-person limit, social distancing, increased hygiene, PPE/face covering mandates in the executive order, the ISBE/IDPH guidance also recommends the following, among others:   

• The guidance also directs schools to clearly communicate safety protocols and expectations to students, staff, and families in advance, in the family’s native language, and via multiple modes including signage around the school.
• Our team has addressed many of the issues raised in the executive order and ISBE/IDPH guidance over the past 12 weeks in its weekly COVID-19 webinars, including those specifically addressing educating socially distanced students, space planning, deep cleaning, and safety, and labor and employment challenges. Our upcoming webinar on FAPE and civil rights will address the many special education implications of the Governor’s order and related ISBE/IDPH guidance, as well. We will continue to offer you innovative conversations through our weekly webinars, which have become the blueprint for conversations about legal issues across Illinois the COVID-19 era. We are here, as we have been from the beginning, as you continue to work through these issues. For more information on this or any other issues relating to reopening, contact the authors of this post or any other Franczek attorney.