face mask 3

In January 2022, the Governor of Virginia signed Executive Order 2, which provided that parents could opt their children out of masking requirements in Virginia’s schools, even if the school or district had otherwise determined mandatory masking to be an appropriate COVID-19 prevention measure. In February 2022, the Virginia legislature enacted Senate Bill 739, which codified this requirement.

The parents of twelve children suffering from disabilities that put them at significant health risk in case of COVID-19 infection filed suit alleging that those state laws violated their rights under federal law, specifically, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

By judgment of 23 March 2022, the District Court of Virginia upheld their claims and partially enjoined enforcement of the challenged state laws. Such a ruling was then appealed by state officials.

In December 2022, the parties of the dispute reached a friendly settlement of the case. Under the settlement, parents of disabled children can request that the students’ peers be required to wear a mask. More precisely, in view of balancing the interests at stake, the settlement provides that the school concerned must “engage in the interactive process with the student and his or her parents to determine in the first instance whether some amount of masking is necessary to satisfy the ADA and Rehabilitation Act. In making that determination, a school should consider alternative modifications [to the statute] such as one-way masking, staff or teacher masking, ventilation improvements and social distancing. If a school nevertheless determines that peer masking is the reasonable modification necessary to satisfy the ADA and Rehabilitation Act rights of a student with a disability, [the challenged statute] does not prohibit such modification [...]. The school must also protect the state-law rights of parents who have decided [...] that their children will not wear a mask”. The settlement still has to be finally approved by the competent Court.

Reference: Seaman v. Virginia, District Court of Virginia.

 

Full text of the decision available at acluva.org en