Head Start Removes Masking Mandate, but Vaccine Requirement Remains (for Now)

January 10, 2023

On January 6, 2023, the Office of Head Start (OHS) removed the masking requirement for all individuals ages two and older when they are indoors in a setting where Head Start services are provided¹. The action was published as a final rule (the Rule) in the Federal Register with immediate effect. The Rule also added a new requirement that all Head Start programs have an evidence-based COVID-19 mitigation policy, developed in consultation with their Health Services Advisory Committee (HSAC), by March 7, 2023. The Rule does not address or make any changes to the vaccination requirement, which remains in effect in states where it has not been enjoined by the courts. 

Practically speaking, the removal of the masking requirement has few implications for Head Start grant recipients, since OHS has not monitored for compliance with the mask requirement since late February 2022. However, some programs have continued to promote, encourage, and even require universal masking as part of a layered mitigation strategy against COVID-19, and they may continue to do so (state law permitting) despite the removal of the masking requirement. Further, since the Rule removes the masking requirement from the Head Start Program Performance Standards (HSPPS), § 1302.47 Safety Practices, programs are not likely to see another mask mandate unless OHS goes through a new rulemaking process. 

The Rule adds a new provision to the HSPPS, § 1302.47(b)(9), requiring that Head Start programs have an evidence-based COVID-19 mitigation policy developed in consultation with their HSAC. Under the Performance Standards, all Head Start grantees are required to have an HSAC, which is an advisory group usually composed of local health providers (45 CFR 1302.40(b)). To assist programs in developing an evidence-based COVID-19 mitigation policy, OHS also released Program Instruction HS-23-01 (the PI). The PI contains links to evidence-based health information resources and considerations for drafting the policy, such as COVID-19 community levels and vaccination rates, and communications with staff and families. The PI emphasizes that grantees’ COVID-19 mitigation policies should be flexible and scalable based on the impacts or risks of COVID-19 in their community. For example, a program may choose to require universal masking when its COVID-19 community level is high, but not when it is medium or low. 

In addition to the considerations laid out in the PI, grant recipients should consider their organizational capacity and the consistency with which they will be able to enforce COVID-19 mitigation strategies when developing a policy. Programs will be monitored on their compliance with the policy they develop, so setting manageable expectations will help the program ensure compliance. OHS has indicated that it will begin monitoring programs on their COVID-19 mitigation policy beginning in the 2023-2024 program year. 

While the vaccine requirement remains in effect, it has been blocked by courts in the following 24 states: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming. Head Start, Early Head Start, and Early Head Start-Child Care Partnership grant recipients in those 24 states are not required to comply with the vaccine requirement, but they are subject to the new performance standard requiring agencies to have an evidence-based COVID-19 mitigation policy. This policy may include vaccination and/or masking requirements to the extent that they do not conflict with state laws limiting such mandates for employment purposes. 

¹Note that this also means that the masking requirement no longer applies when two or more individuals are in a vehicle owned, leased, or arranged by the Head Start program and, for those not fully vaccinated, outdoors in crowded settings or during activities that involve close contact with other people. 

This news flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Award Number 90ET0482-03. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.