Attorney in governor's office tells education groups
that schools have flexibility on physical distancing

By Eric D. Randall
Editor-in-Chief

After superintendents expressed confusion over the six-foot distancing rule announced by the state Department of Health (DOH) on Friday, an official in the governor’s office announced that when students are unmasked, schools should simply "implement physical distancing to the extent possible… but should not exclude students from in-person learning to keep a minimum distance requirement."

The announcement was made by Terrance Pratt, an attorney in the governor’s office.

Regulations by the state Department of Health effective August 27 do not require a six-foot physical distancing requirement, but the statement issued that same day by the state Department of Health did include the distancing requirement under certain circumstances such as eating, drinking, singing or playing a wind instrument.

Superintendents and school board members expressed concern after that announcement that if students had to sit six feet apart in lunchrooms, it would be impossible to have every student in school every day.

Pratt’s email – which was sent to education groups today – reads as follows:

I wanted to assuage some concerns that have been raised over the brief statement sent by DOH yesterday.  With respect to 6 ft distancing when students are unmasked and performing certain high-risk activities (eating, singing, etc.), DOH is applying the CDC's guidance in this area, including as follows from within the CDC Guidance: 

"Because of the importance of in-person learning, schools should implement physical distancing to the extent possible within their structures but should not exclude students from in-person learning to keep a minimum distance requirement."

(bold in original)

Pratt continued: "I hope this clarification addresses your members' questions with respect to the statement that was sent yesterday. DOH is working on additional guidance which will reflect this, and which we will discuss with you prior to issuance. As always, we appreciate your feedback and want to be responsive and collaborative as we work to open schools safely together."

The DOH statement on August 27 that Pratt referred to also came in the form of an email to school groups. That statement read:

"Effective immediately, in accordance with the Commissioner's Determination issued pursuant to 10 NYCRR 2.60, any person over the age of 2 (including all students, personnel, teachers, administrators, contractors, and visitors) must wear masks at all times indoors in P-12 school buildings, regardless of vaccination status. People with medical or developmental conditions that prevent them from wearing a mask may be exempted from mask requirements, as documented by a medical provider. People do not need to wear masks when eating, drinking, singing, or playing a wind instrument; when masks are removed for these purposes, individuals must be spaced six feet apart. All mask requirements must be applied consistently with any state and federal law (e.g., Americans with Disabilities Act)." (bold added)

Pratt provided a link to the full text of the Health Commissioner’s Determination regarding masking, which states it was issued pursuant to 10 NYCRR 2.61, which is a different regulation than the one cited above.

"Today’s announcement is constructive," said NYSSBA Executive Director Robert Schneider. "I think it is accurate to say that everyone involved in school leadership fervently wishes that schools had received clear guidance from the state government much earlier this summer, especially considering that this is the second time we are attempting to reopen schools in the middle of a pandemic. That said, I think everyone is doing the best they can during very challenging circumstances." ​