ACF / OHS Releases Long-Awaited Rules for Head Start Masking and Vaccines

November 29, 2021

Earlier today, the Administration for Families and Children released an unpublished version of the long-anticipated rules for Head Start and Early Head Start grantees pertaining to universal masking requirements and staff vaccination requirements in response to COVID-19. These new rules will be officially published tomorrow, November 30, 2021, and the text of the proposed rule may be found here: Federal Register – Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs. While the proposed rules will be subject to a 30-day comment period, certain provisions related to universal masking will go into effect immediately.

To help decipher what these new rules mean, KHSA has reviewed the 134-page proposed rule and highlighted key components below. Please refer to the specific rule and its relevant sections for details.

In addition, the Office of Head Start has shared a new FAQ that you may find useful: Office of Head Start Guidance – Universal Masking and COVID-19 Vaccine Mandate FAQ.

Key Dates

  • Tuesday, November 30, 2021 – universal ask mandate takes effect for all children and staff two-years of age or older
  • Monday, January 31, 2022 – vaccine mandate takes effect for all HE/EHS staff

Key Components of New Rule

Provisions of the Interim Final Rule (page 28)

This interim final rule (IFR) adds new provisions to the Head Start Program Performance Standards to require: (1) effective immediately, and with exceptions discussed below, universal masking for all individuals two years of age and older regardless of program option, (2) all Head Start staff, certain contractors, and volunteers in classrooms or working directly with children to be fully vaccinated for COVID-19, with exemptions discussed below, and (3) for those granted an exemption to the requirement specified in (2) at least weekly testing for current SARS-CoV-2 infection.

Definition of Staff (page 28)

The definition of staff in §1305.2 is “paid adults who have responsibilities related to children and their families who are enrolled in programs.” Consistent with that definition, “all staff” as noted in this IFC, refers to all staff who work with enrolled Head Start children and families in any capacity regardless of funding source. The term “Head Start” is inclusive of Head Start, Early Head Start, and Early Head Start-Child Care Partnerships.

Definition of Volunteers (page 32)

This IFC also adds a new paragraph (a)(1) to § 1302.94, Volunteers, that requires all volunteers who are in classrooms or working directly with children other than their own must be fully vaccinated for COVID-19, except for those (i) for whom a vaccine is medically contraindicated, (ii) for whom medical necessity requires a delay in vaccination, or (iii) who are legally entitled to an accommodation with regard to the COVID-19 vaccination requirement based on an applicable Federal law.

Masking Requirements (page 30)

This IFC adds a new provision to part 1302, subpart D – Health Program Services in § 1302.47, Safety practices. Section 1302.47(b)(5), Safety practices, specifies the appropriate practices all staff and consultants follow to keep children safe during all activities. This IFC creates a new paragraph (vi) that requires universal masking for all individuals aged 2 years and older when there are two or more individuals in a vehicle owned, leased, or arranged by the Head Start program; indoors in a setting when Head Start services are provided; and for those not fully vaccinated, outdoors in crowded settings or during activities that involve sustained close contact with other people. The Office of Head Start notes that being outdoors with children inherently includes sustained close contact for the purposes of caring for and supervising children.

Using Head Start Funds to Purchase Masks (page 30)

Purchasing masks needed for staff to fulfill their duties and responsibilities and for children is considered an allowable use of Head Start program funds, as well as the COVID-19 response funds and the American Rescue Plan funds. Programs should have masks available to provide to children when they do not have their own mask.

Mask Wearing Exceptions (page 30)

Exceptions are noted for when individuals are eating or drinking; for children when they are napping; for the narrow subset of persons who cannot wear a mask, or cannot safely wear a mask, because of a disability as defined by the Americans with Disabilities Act (ADA), consistent with CDC guidance on disability exemptions; and for children with special health care needs, for whom programs should work together with parents and follow the advice of the child’s health care provider for the best type of face covering.

It should be noted that like all new skills, children will need to be taught the proper way to put a mask on and keep a mask on. While children are adaptable, they are still in the early stages of development and may need reminders and reinforcements to comply with this new practice. It is imperative that Head Start staff abide by the Standards of Conduct outlined in 1302.90 Personnel Policies in the Head Start Program Performance Standards namely that staff, consultants, contractors, and volunteers implement positive strategies to support children’s well-being and do not use harsh disciplinary practices that could endanger the health or safety of children.

Vaccine Requirement (page 31)

This IFC adds a new paragraph (a)(1) to § 1302.93 requiring all staff, and those contractors whose activities involve contact with or providing direct services to children and families, to be fully vaccinated for COVID-19, except for those (i) for whom a vaccine is medically contraindicated, (ii) for whom medical necessity requires a delay in vaccination, or (iii) who are legally entitled to an accommodation with regard to the COVID-19 vaccination requirement based on an applicable Federal law.

It also adds a new paragraph (a)(2) indicating that those who are granted an exemption outlined in (a)(1)(i) through (iii) must undergo testing at least weekly for current SARS COV-2 infection.. The additions made to § 1302.94, Volunteers, mirrors that of § 1302.93, Staff health and wellness. This IFC also adds a new paragraph (a)(1) to § 1302.94, Volunteers, that requires all volunteers who are in classrooms or working directly with children other than their own must be fully vaccinated for COVID-19, except for those (i) for whom a vaccine is medically contraindicated, (ii) for whom medical necessity requires a delay in vaccination, or (iii) who are legally entitled to an accommodation with regard to the COVID-19 vaccination requirement based on an applicable Federal law.

It also adds a new paragraph (a)(2) indicating that those who are granted an exemption outlined in paragraphs (a)(1)(i) through (iii) must undergo testing at least weekly for current SARSCoV-2 infection. Finally, we have also revised § 1302.94 to remove the word “regular” from paragraph (a). We believe it is important for all volunteers to adhere to these requirements not just those who regularly volunteer in the program.

Paying for COVID-19 Testing (page 32)

The costs associated with regular testing for those granted an exemption are an allowable use of Head Start funds so long as it is included in a program’s policies and procedures. While paying for the costs associated with regular testing is allowable use of Head Start funds, it is not a requirement. Programs should consider whether they can sustain continued funding for testing if/when the COVID-19 funds are exhausted.

Documentation of Vaccination Status (page 33)

The Head Start Act at section 647 (42 USC 9842) has a provision on recordkeeping, which allows the Secretary to require certain records be kept and to support OHS in conducting its oversight of programs through monitoring. Pursuant to the statutory recordkeeping requirement in section 647 of the Head Start Act (42 U.S.C. 9842) and in order to ensure programs are complying with the vaccination requirements of this IFC, we are requiring that they track and securely document the vaccination status of each staff member, including those for whom there is a temporary delay in vaccination, such as recent receipt of monoclonal antibodies or convalescent plasma. Vaccination exemption requests and outcomes must also be documented, discussed further in section II.A.5. of this IFC.This documentation will be an ongoing process as new staff are onboarded.

While program staff may not have personal medical records on file with their employer, all staff COVID-19 vaccines must be appropriately documented by the provider or supplier. All medical records, including vaccine documentation, must be kept confidential and stored separately from an employer’s personnel files, pursuant to the ADA and the Rehabilitation Act.

Examples of acceptable forms of proof of vaccination include:

  • CDC COVID-19 vaccination record card (or a legible photo of the card);
  • Documentation of vaccination from a health care provider or electronic health record; or
  • State immunization information system record.

If vaccinated outside of the United States, a reasonable equivalent of any of the previous examples would suffice.

Exemption Process (page 34)

Under Federal law, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, staff, contractors, and volunteers who cannot be vaccinated because of a disability under the ADA, medical condition, or sincerely held religious beliefs, practice, or observance may in some circumstances be granted an exemption, as discussed in II.B of this IFC. Head Start staff included in this IFC must be able to request an exemption from these COVID-19 vaccination requirements.

Additionally, programs following CDC guidelines and the new requirements in this IFC may also be required to provide reasonable accommodations, to the extent required by federal law, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance. In support of the new requirements in §§ 1302.93 and 1302.94, it is the responsibility of Head Start programs to establish a process for reviewing and reaching determinations regarding exemption requests (e.g., disability, medical conditions, sincerely held religious beliefs, practices, or observances).

Programs must have a process for collecting and evaluating such requests, including the tracking and secure documentation of information provided by those staff who have requested exemption, the program’s decision on the request, and any accommodations that are provided. Requests for exemptions based on an applicable federal law must be documented and evaluated in accordance with applicable Federal law and each program’s policies and procedures. As is relevant here, this IFC preempts the applicability of any state or local law providing for exemptions to the extent such law provides broader exemptions than provided for by federal law and are inconsistent with this IFC.

For staff members, contractors, and volunteers who request a medical exemption from vaccination, all documentation confirming recognized clinical contraindications to COVID-19 vaccines or medical need for delay, and which supports the request, must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice as defined by, and in accordance with, all applicable state and local laws. Such documentation must contain all information specifying which of the authorized or approved COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications or the recognized clinical reasons necessitating delay in vaccination; and a statement by the authenticating practitioner recommending that the staff member be exempted from the program’s COVID-19 vaccination requirements based on the recognized clinical contraindications or allowed to delay vaccination.

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