RICHMOND, Va. (WRIC) — Richmond and Petersburg City Public Schools are retaining their respective mask requirements for the 2022-23 academic year, despite Executive Orders under the Youngkin Administration and new legislation supporting parent choice on the matter.

However, school divisions like those in Richmond and Petersburg are working within the gray area of state measures by allowing parents and guardians to have their children opt out of required mask wearing.

“The law, as it exists right now, applies only to students,” 8News legal analyst Russ Stone said. “It basically says that a student does not have to wear a mask. If there is a masking requirement in a school, they are allowed to opt-out from it, and that can be done — parents get to make that decision.”

For example, the language approved by the Richmond Public School Board at its Monday meeting for the 2022-23 reopening plan and COVID-19 protocols stated:

Students are required to wear a mask at all times within RPS [Richmond Public Schools] buildings and on the bus unless their parent submits a mask opt out request to COVIDrps@rvaschools.net. The optout request only needs to state the student’s name and school. This includes mask exemptions for students with special needs.

Comparatively, SB739, introduced by Republican State Senator Siobhan Dunnavant, reads as follows:

Notwithstanding any other provision of law or any regulation, rule, or policy implemented by a school board, school division, school official, or other state or local authority, the parent of any child enrolled in a public elementary or secondary school, or in any school-based early childhood care and education program, may elect for such child to not wear a mask while on school property. A parent making such an election shall not be required to provide a reason or any certification of the child’s health or education status. No student shall suffer any adverse disciplinary or academic consequences as a result of this parental election.

Richmond and Petersburg Public Schools are also requiring masks for adults, including teachers and staff, while RPS amended its policy to lift the face covering mandate outdoors.

“RPS staff who do not adhere to mask guidance are subject to disciplinary action,” the approved health and safety measures stated.

8News reached out to the Youngkin administration for comment on this policy. A spokesperson shared the updated guidance from Virginia’s Department of Labor and Industry (DOLI) as a reference:

During this transition period of near normalcy, the Commonwealth of Virginia and the Department
of Labor and Industry support and respect the rights of individuals to choose whether to wear
masks or to not wear masks in non-federally mandated environments, unless required by law or as
medically appropriate in cases of acute illness or in certain healthcare environments. The Commonwealth of Virginia and the Department of Labor and Industry will not allow or condone illegal discrimination based on wearing or not wearing masks, and people should not be fired or terminated for not wearing a mask, except as noted above, or unless required by federal law.

Sen. Dunnavant spoke with 8News on Wednesday, clarifying what this means for RPS teachers and staff.

“‘We can reprimand you, we can take action.’ They don’t specify what that is or isn’t, but they are fully within their power to hold their employees accountable as they see fit,” she said. “Based on that recommendation from the regs., which are not law — they’re recommendations — but the recommendations from DOLI say, ‘We should not fire somebody for that reason.'”

During Monday night’s School Board meeting, RPS Superintendent Jason Kamras noted that the City of Richmond has been at a high community transmission level of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC), since May. As such, the coronavirus protocols for the upcoming academic year were set in line with the CDC’s guidance for that level of spread. But Kamras also stated that RPS officials would review the protocols every two months to determine what changes, if any, might be appropriate.

“Traditionally, Virginia has always been a state that pushed toward local control. In other words, the general feeling was that the local school boards should be able to decide these things,” Stone said.

In introducing SB739, Dunnavant, who is also a physician, said that medical decisions impacting students should be made by parents or guardians.

“I thought it was particularly important for us to pass that language, mostly because I’d heard from so many parents that were frustrated for their children,” she said. “Medical decisions are parental, so we’re going to have parents make those decisions. But when you talked about what the state guidelines were for employees or employers, those were governed by the Department of Labor, so it wasn’t really in the same part of the Code [of Virginia] to be addressing teachers, and there were regulations that were active at that time that basically mandated masking in the workplace, for certain different types of employment.”

Some of the earliest legal action to address mask requirements for children under the Youngkin Administration came in the form of Executive Order 2 back in January, which made the matter of face coverings a choice. Then, in February, SB739 amended the Code of Virginia.

“A principle of statutory construction is that you have to read the statute in as minimalist a way as possible,” Stone said. “It does not mention teachers and staff. Therefore, they are not covered by it.”

In Central Virginia and the metro Richmond area, Hanover, Henrico, Chesterfield and Goochland Counties, and the Cities of Hopewell, Petersburg and Richmond all have high rates of community transmission of COVID-19, with the rate in Hopewell nearly double that in its surrounding localities. However, aside from Richmond and Petersburg City Public Schools, the other school divisions in those localities have left masking optional heading into the 2022-23 academic year.

“School boards now have the prerogative to choose if they mask or if they don’t mask, just like any employer,” Dunnavant said. “I think that’s where you’re seeing the diversity we’re talking about in employment contracts that can determine the variables of employment, as opposed to medical decision making, which really should be with the parents.”