December 15, 2020 Executive Order Permits Schools in “Red” and “Orange” Zones to Continue In-Person Instruction
KEEPING YOU INFORMED…
We are writing to advise you that, due to the expected continuation of both travel-related cases and community contact transmission of COVID-19, the Governor has issued Executive Order 202.79, permitting public and non-public schools located within geographic areas designated by the Department of Health (DOH) as “orange zones” and “red zones” to remain open for in-person instruction, provided that they follow the DOH’s guidance and directives. This Order is effective through January 1, 2021, unless later extended.
On December 4, 2020, the DOH updated interim guidance on COVID-19 testing requirements for schools in orange or red zones. Schools located in either of these designated zones must demonstrate that they are complying with the DOH testing requirements by completing both an attestation on the school survey and the required dashboard reporting. A summary of the testing requirements, including the existing and new requirements for schools in yellow zones, can be found below.
Schools in Orange Zones
• During the one month period following an orange zone designation, schools within an orange zone must test a total of 20% of their in-person students, faculty and staff. Those tested should be proportionately spread across the month so that half of the required testing (10%) is completed during each biweekly period.
Schools in Red Zones
• During the one month period following a red zone designation, schools must test a total of 30% of their in-person students, faculty and staff. Those tested should be proportionately spread across the month so that half of the required testing (15%) is completed during each biweekly period.
Schools in Yellow Zones
The DOH’s October 9, 2020 guidance regarding testing for schools in yellow zones remains unaffected by the new guidance. As a reminder, a summary of the requirements is below.
• During the two week period immediately following a yellow zone designation, schools must test a total of 20% of their in-person students, faculty and staff. If the result of the testing reveals a positivity rate lower than the geographic yellow zone seven-day positivity rate, additional testing will no longer be required. If the positivity rate reveals it is higher than the geographic yellow zone seven-day rate, the school will be required to continue testing 20% of the in-person population on a biweekly basis.
Other Students to Include in School Random Testing (Yellow, Orange and Red Zones)
The DOH’s December 4, 2020 guidance includes the following new requirements on other students who need to be included in the random testing:
• Students who participate in hybrid learning or all-virtual learning and who, during school hours, attend either an Office of Children and Family Services (OCFS)-licensed/registered program or are enrolled in a legally exempt group child program located within a zoned school, must be included in the school’s random testing protocols.
• Any Pre-K classes taking place at a zoned school site must also be included in the school’s random testing protocols.
When a School Will Be Required to Close (Orange or Red Zones)
• In schools outside of NYC, if a sample size of more than 300 weekly tests results in 3% or higher positivity rate; or
• In any school, if a random test sampling generates nine or more positive cases.
• Schools should provide the opportunity to be tested on school grounds, or allow testing and accept results from outside testing providers.
• If a school does not provide the opportunity to be tested on school grounds, test results from outside testing providers can be accepted, if:
o The test was conducted after the date on which the school was designated as an orange or red zone; and
o The test results are provided to the school within seven days from when the test was taken.
Testing on School Grounds
• NYS is providing schools with rapid test kits upon request if schools can provide trained personnel, with the required laboratory permits, to conduct the tests. Schools that currently have a Limited School License (LSL) can add (COVID-19) antigen testing to their existing LSL registration.
• Schools can also utilize “pooled testing,” as long as it is done by a lab approved to conduct the diagnostic tests.
Data and Reporting
• Any testing conducted through schools, in partnership with other health care entities, must be reported separately through the school dashboard survey and the Electronic Clinical Laboratory Reporting System (including rapid point-of-care testing).
If you have any questions regarding the implementation of Executive Order 202.79 or the related DOH interim guidance, please contact Alyson Mathews, Michelle A. Mahabirsingh or one of our other attorneys by calling 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
Attorney Advertising: Prior Results Do Not Guarantee a Similar Outcome.
© Lamb & Barnosky, LLP 2021
 On December 4, the DOH issued updated Interim Guidance on Mandatory COVID-19 Testing in Public and Non-Public Schools Located in Areas Designated as “Orange” or “Red” Cluster Zones, which is available at: https://coronavirus.health.ny.gov/system/files/documents/2020/12/guidanceforschoolsinredandorangezones.pdf.
 The DOH issued updated Interim Guidance on Mandatory COVID-19 Testing in Public and Non-Public Schools Located in Areas Designated as “Yellow Zones,” which is available at: