Head Start Issues Vaccine Rule; Masking Required Immediately

November 29, 2021

Today, the Office of Head Start (OHS) released its long-awaited vaccination mandate (the Rule), which will be published as an interim final rule with comment period in the Federal Register tomorrow, November 30, 2021. The Rule amends the Head Start Program Performance Standards (HSPPS) to require masking for individuals aged two and older. It also requires vaccination for all Head Start staff, contractors whose activities involve contact with or providing direct services to children and families, and volunteers working in classrooms or directly with children (Covered Individuals). 

CAPLAW will host a webinar to discuss the Rule in detail on Wednesday, December 1, from 2:00-3:30 pm EST. We encourage you to register here and join us. Below is a summary of some of the major points regarding the Rule and its implementation:

• Individuals aged two or older are required to wear a mask, effective tomorrow, November 30, 2021. Masks are required for all individuals, vaccinated and unvaccinated, while indoors in a setting when Head Start services are provided and when in a vehicle owned, leased, or arranged by the Head Start program. If outdoors in crowded settings or during activities that involve sustained close contact with other people, unvaccinated individuals must continue to wear a mask. Masks are not required to be worn by children or adults when they are eating or drinking; by children when they are napping; if the person cannot safely wear a mask because of a disability under the Americans with Disabilities Act; or when a child’s health care provider advises an alternative face covering to accommodate the child’s special health care needs.
• Covered Individuals must be fully vaccinated against COVID-19 by January 31, 2022. As defined by the CDC, full vaccination requires a 14-day waiting period after the first or second dose, as applicable. Under the Rule, however, Covered Individuals who have received the final dose of a primary vaccination series by January 31, 2022 will be considered to have met the vaccination requirement.
• Covered Individuals include:
  • All staff who work with enrolled Head Start children and families in any capacity regardless of funding source. The HSPPS defines staff as “paid adults who have responsibilities related to children and their families who are enrolled in programs” (§ 1305.2). This is a broad definition that includes employees working remotely and administrative employees without classroom duties or client contact, such as the Executive Director and fiscal staff. It also includes the Early Head Start and Early Head Start-Child Care Partnerships programs.​
  • Contractors whose activities involve being in contact with or providing direct services to children and families. This could include transportation staff and contractors who are in classrooms or work directly with children and families.
  • Volunteers in classrooms or working directly with children other than their own.
• There is no test-out option for the vaccination requirement. However, vaccination is not required for Covered Individuals (1) for whom a vaccine is medically contraindicated; (2) for whom medical necessity requires a delay in vaccination; or (3) who are legally entitled to an accommodation with regard to the COVID-19 vaccination requirements based on applicable federal law. Programs may establish their own procedures for considering exemptions, but, the Rule requires all medical exemptions granted for reasons (1) and (2) above to be supported by documentation signed by a licensed practitioner.
• Covered Individuals granted an exemption from the vaccine requirement must undergo COVID-19 testing at least weekly and provide negative test results to remain in the classroom or work directly with children. Those that test positive must be immediately excluded from the facility and kept away from children and staff until they are no longer infectious. Head Start grantees may, but are not required to, use Head Start funds (COVID-19 supplemental or regular program funds) to cover the cost of testing for individuals granted exemptions.
• Programs should collect proof of vaccination documentation from all Covered Individuals. Examples of acceptable forms of proof of vaccination include: (1) CDC COVID-19 vaccination record card (or photo of the card), (2) Documentation of vaccination from a health care provider or electronic health record, or (3) State immunization information system record. Programs have the flexibility to use the appropriate tracking tools of their choice, such as the CDC staff vaccination tracking tool. Grantees should maintain employee vaccination records confidentially in a file separate from each employee’s regular personnel file, and they should be made available for monitoring upon request.
• Programs are expected to work towards full enrollment and in-person services by January 2022, consistent with previously issued guidance (ACF-PI-HS-21-04). OHS intends to reinstate pre-pandemic practices for tracking and monitoring enrollment at that time, as well as resume evaluating which programs enter the Full Enrollment Initiative, a process by which OHS identifies programs that are not serving their full funded enrollment.
• OHS will monitor compliance with the Rule in the same way it monitors other health and safety requirements in the HSPPS.
• OHS invites written comments on the Rule. Although the Rule is effective immediately upon publication, the public has 30 days to submit written comments. You can submit your feedback at https://www.regulations.gov.

Note that though the vaccine-or-test mandate recently announced by OSHA is currently on hold due to legal challenges, the Head Start vaccine mandate is an independent rule and is in effect as of November 30, 2021.

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 90ET0467-03-C3. 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.