Note to Readers: This area of the law is constantly changing. New Executive Orders and updated IDPH/ISBE guidance have been issued, and there are ongoing court challenges. Please contact your legal counsel to ensure you are reviewing the most up-to-date information.
UPDATE 9-23-21: Governor Pritzker issued Executive Order 2021-25 to further clarify Executive Order 2021-24.
Within the last several days, ISBE and IDPH separately issued emergency rules on vaccination/testing requirements for school personnel and school exclusion, implementing recent Executive Orders issued by Governor Pritzker. ISBE and IDPH also updated the Joint Guidance, the FAQ, and other guidance documents. As we continue to digest all of the recently issued rules and documents, here is a summary with links to each document.
ISBE Emergency Rules – Vaccination and Testing of School Personnel
On September 17, 2021, ISBE issued emergency rules to implement Governor Pritzker’s Executive Order 2021-22 concerning vaccination and testing requirements for school personnel. Our article highlighting several important clarifications and new requirements in the ISBE emergency rules is available here.
Governor’s Executive Order 2021-24 – Exclusion of School Personnel and Students
On that same day, Governor Pritzker issued Executive Order 2021-24 on school exclusion for individuals with Confirmed and Probable COVID-19 cases, as well as those who are Close Contacts. The Executive Order requires all schools (public, non-public, and charter schools) to exclude students and school personnel who meet certain COVID-19-related criteria regardless of whether an isolation or quarantine order has been issued by a local health department. Schools must provide remote instruction to students during periods of school exclusion pursuant to the State Superintendent’s declaration. Our article discussing the Executive Order’s requirements is available here.
IDPH Emergency Rules – Exclusion of School Personnel and Students
Also on September 17, IDPH issued emergency rules implementing Executive Order 2021-24. The IDPH emergency rules reiterate the school exclusion requirements in the Executive Order and clarify that schools must conduct contact tracing to identify occurrences of COVID-19 and Close Contacts of COVID-19 cases in schools. The emergency rules also include important changes that appear to address potential gaps in rulemaking that have been the focus of recent litigation involving schools around the State. Notably, the emergency rules delete the definitions of “modified isolation” and “modified quarantine,” clarifying that exclusion from school is not considered isolation or quarantine. The emergency rules also state that “requiring vaccination, testing, or the wearing of masks, or excluding a Student or School Personnel consistent with this subsection shall not constitute isolation or quarantine under the [Department of Public Health] Act, 20 ILCS 2305/1.1 et seq., and may be done without a court order or order by a local health authority.”
IDPH Interim Guidance – Exclusion Protocols for School Personnel and Students
Additionally, IDPH issued Public Health Interim Guidance for Local Health Departments and Pre-K-12 Schools – COVID-19 Exclusion Protocols (September 21, 2021). The purpose of the document is to provide additional guidance for schools and local health departments for when students and school personnel must be excluded from school consistent with Executive Order 2021-24 and the Communicable Disease Code (77 Ill. Admin. Code 690.361 and 690.30(c)).
On September 29, 2021, IDPH released an updated COVID-19 decision tree for excluding symptomatic individuals from pre-K, K-12 schools, and day care programs.
ISBE/IDPH Joint Guidance, FAQ, and Fact Sheet
ISBE and IDPH updated the Revised Public Health Guidance for Schools – Part 5 (September 21, 2021) (the “Joint Guidance”) and Frequently Asked Questions for Schools (September 21, 2021). Both documents contain important updates that align with Executive Orders 2021-22 and 2021-24 and the ISBE and IDPH emergency rules.
ISBE and IDPH also issued a helpful one-page fact sheet summarizing the requirements under Executive Order 2021-24 and the IDPH emergency rules on school exclusion.
We recommend schools closely review the Executive Orders, ISBE and IDPH emergency rules, and various ISBE/IDPH guidance documents and consult with legal counsel regarding implementation. Contact an HLERK attorney with your questions.