Governor’s Executive Order Applies Tier 3 Mitigation Rules to School Non-Instructional Activities

Effective November 20, 2020, Governor Pritzker’s Executive Order 2020-73 set forth a Tier 3 Mitigation Order for management of the spread of COVID-19. Significantly, the Tier 3 Order provides that the Tier 3 mitigations now cover K-12 schools, except for instructional activities.

On November 24, ISBE issued an FAQ interpreting the above Tier 3 Order with respect to schools.  Per ISBE’s FAQ interpretation, the Tier 3 Order applies to schools as follows:

• Instructional activities are exempt from Tier 3 (this includes providing meals and transportation).  These activities should continue to follow the Part 3 Joint Transition Guidance, including its social distancing requirements and its prohibition on gathering more than 50 individuals in one space.

• Board meetings are exempt from Tier 3, but boards are encouraged to hold remote meetings.  Note that the scope of the ISBE FAQ does not include reference to the Governor’s November 13 Disaster Declaration currently in place, which states that, for purposes of determining the feasibility of holding meetings under OMA, in-person attendance of more than 10 people at the regular meeting location is not feasible. See HLERK’s prior summary of that Disaster Declaration provision regarding remote board meetings.

• Non-instructional activities must comply with Tier 3.  Specifically, ISBE notes the following requirements of the Tier 3 Order:
  1. School-based athletics must comply with Tier 3 rules for recreation, youth day camps and youth sports. Indoor group sports and recreational activities are prohibited.  Outdoor sports and recreation are allowed in groups up to 10, with social distancing, the use of face coverings, and compliance with DCEO guidance.
  2. Meetings and events are subject to the Tier 3 rule that “indoor venues and meetings spaces such as meeting rooms, banquet centers, private party rooms, private clubs, country clubs and party buses” are prohibited from hosting gatherings of any size.
  3. Staff/teacher meetings must comply with Tier 3 rules. The ISBE FAQ also indicates that indoor staff/teacher meetings are subject to the prohibition on hosting gatherings of any size in “meeting spaces” (see immediately preceding paragraph).
  4. Places of indoor amusement (e.g. theaters, performing arts, and spectator events) are prohibited from operating.
  5. Outdoor recreational activities are capped at 25% occupancy, must comply with social distancing and the use of face coverings, and groups should be limited to no more than 10 people.

Implementation of the various mitigation orders and pandemic guidance continues to be a moving target as modified rules and interpretations are issued.  School districts should consult with their legal counsel regarding navigation of these rules.