Updated: February 11, 2022

 
This Order combines the State of Emergency Declaration and Revisions

WHEREAS, the Centers for Disease Control and Prevention (“CDC”) has determined that the novel coronavirus (“COVID-19”) presents a serious public health threat, and the CDC is expecting a surge of COVID-19 cases in the coming days to weeks being caused by new and highly transmissible variants of the coronavirus such as Delta and Omicron which spread more easily than the original virus; and

WHEREAS, on January 3, 2022 at 11:30 a.m. E.S.T., I issued a State of Emergency for the State of Delaware due to a Public Health Threat, a complete copy of which is incorporated herein by reference and available at https://de.gov/covidorders; and

WHEREAS, on January 10, 2022, at 7:30 p.m. E.S.T., I issued an Amended First Revision to the State of Emergency for the State of Delaware due to a Public Health Threat, requiring Delawareans to wear masks in indoor public settings, including convenience stores, grocery stores, gyms, restaurants, bars, hair salons, malls, and casinos; and

WHEREAS, on January 14, 2022, at 8:00 a.m. E.S.T., I issued the Second Revision to the State of Emergency for the State of Delaware due to a Public Health Threat, allowing the Division of Public Health (DPH) to approve alternative mitigation measures in place of the mask mandate for professional and NCAA athletes; and

WHEREAS, on January 31, 2022 at 12:00 p.m. E.S.T., I issued the Third Revision to the State of Emergency for the State of Delaware due to a Public Health Threat, authorizing the Secretary of the Delaware Department of Transportation to issue waivers of state enforcement of laws and regulations applicable to commercial motor vehicles operating in support of the declared emergency; and

WHEREAS, on February 7, 2022 at 8:00 a.m. E.S.T., I issued the Fourth Revision to the State of Emergency for the State of Delaware due to a Public Health Threat, extending the use of masks in certain school and childcare settings effective on February 8, 2022, and eliminating the universal mask mandate as of February 11, 2022; and

WHEREAS, in January 2022, Delaware has experienced an extraordinary surge in recent hospitalizations, with some hospitals over 100% inpatient bed capacity amid crippling staffing shortages; and

WHEREAS, the CDC expects that anyone with an Omicron infection can spread the virus to others, even if they are vaccinated or asymptomatic; and

WHEREAS, evidence has shown that children do better when they are able to attend school full time, in person, and while the youngest children in Delaware are unable to get vaccinated against COVID-19, the best way to mitigate the spread of the virus is through a tiered strategy that combines encouraging vaccination with additional steps including continued face mask usage; and

WHEREAS, effective implementation of multiple strategies is imperative to prevent or significantly decrease transmission of COVID-19 and other infections within schools and child care facilities; and

WHEREAS, face mask use in within schools and child care facilities while continuing to work towards increasing the vaccinated population in Delaware is imperative to mitigate this public health risk; and

WHEREAS, despite administering over one and a half million doses of COVID-19 vaccines to individuals who live, work, and are educated in Delaware, Delaware has experienced an extraordinary surge in recent hospitalizations with some hospitals over 100% inpatient bed capacity amid crippling staffing shortages; and

WHEREAS, there is a need to create greater flexibility for our healthcare system to respond to another COVID-19 surge; and

WHEREAS, it is critical that individuals and businesses in Delaware continue to follow vaccine, booster, social distancing, masking, and other infection control protocols as recommended by the CDC; and

WHEREAS, there is a shortage of substitute teachers in school districts throughout the State, which is being exacerbated by the increased transmissibility of the Omicron variant; and

WHEREAS, COVID-19 has directly impacted the number of commercial motor vehicle drivers able to drive and move essential supplies and provide critical services throughout the State, including the intrastate movement of poultry and poultry supplies which is critical to Delaware’s economy; and

WHEREAS, in the interest of protecting the citizens of this state from a public health threat, the Governor is authorized by law to issue an order reasonably necessary to suspend the provisions of any regulatory statute prescribing the procedures for conducting state business, or the orders, rules, or regulations of any state agency, where strict compliance with such provisions may hinder necessary action in coping with the emergency.

NOW, THEREFORE, I, JOHN C. CARNEY, pursuant to Title 20, Chapter 31 of the Delaware Code, to control and prevent the spread of COVID-19 within the State of Delaware, do hereby order that the following provisions shall become effective immediately and shall continue until terminated as provided under state law:

A. POWERS OF DELAWARE EMERGENCY MANAGEMENT AGENCY (DEMA) AND DELAWARE DIVISION OF PUBLIC HEALTH (DPH).

1. The Public Health Authority is authorized to make, amend, and rescind orders, rules and regulations under Title 16 necessary for emergency management purposes.

2. The Public Health Authority is authorized to:

i. Suspend all state-required deadlines and timetables for performance of facility and agency licensure activities as the Public Health Authority deems necessary; and

ii. Suspend any regulatory requirement found in Title 16 of the Delaware Administrative Code that the Public Health Authority deems an impediment to staffing facilities and agencies during the pendency of the emergency; and

iii. Suspend any regulatory requirements related to the provision of in-home medical care and personal services under Title 16 of the Delaware Administrative Code as the Public Health Authority deems necessary.

3. The requirement that long term care facilities provide documentation to the Division of Health Care Quality as to the amount of direct care time that was provided in an emergency by a Director of Nursing, Assistant Director of Nursing, or registered nurse assessment coordinator as required in 16 Del. C. § 1161(e) is hereby suspended.

4. Long term care facilities must continue to provide 3.28 hours of direct care per resident per day. However, the staffing ratios required in 16 Del. C. § 1162 are hereby suspended.

5. The requirements in Chapter 93 of Title 16 are hereby suspended for acute care hospitals that seek to increase their bed capacity in order to treat COVID-19 patients, so long as any such hospital obtains approval from the Division of Public Health. Hospitals that wish to increase their bed capacity to treat COVID-19 patients must submit a plan to OEMS@delaware.gov. Plans must include a justification for increased beds, and assurances for adequate staffing, maintenance, and safety. Plans may not be implemented until approved by the Division of Public Health. Hospitals that increase bed numbers pursuant to this section must eliminate beds and return to the previously approved number of licensed beds, or seek a Certificate of Public Review, if so ordered by the Division of Public Health or upon the termination of the State of Emergency.

6. The following requirements are waived or modified for members of the Delaware National Guard who complete a Certified Nursing Assistant course after January 1, 2022:

i. The requirement in 16 Del. C. §3002A that Certified Nursing Assistant trainees must complete a total of 150 clock hours of training. However, such individuals who wish to become certified must complete 75 classroom hours and 16 clinical hours before sitting for a certification exam.

ii. The requirement in 16 Del. C. §3004A that Certified Nursing Assistant trainees must complete a mandatory orientation period is hereby waived.

iii. In lieu of the requirements in 16 Del. C. § 1141, members of the Delaware National Guard shall provide each facility they work in as a Certified Nursing Assistant a copy of their criminal history report obtained after January 1, 2022. However, no member of the Delaware National Guard may work as a Certified Nursing Assistant in a long-term care facility if they have a conviction deemed disqualifying by the Department of Health and Social Services.

iv. In lieu of the requirements in 16 Del. C. § 1141, members of the Delaware National Guard shall provide each facility they work in as a Certified Nursing Assistant a copy of a drug screening obtained after January 1, 2022 that meets the requirements established by the Department of Health and Social Services.

B. EDUCATION AND CHILDCARE

1. Substitute Teachers. The provisions of 29 Del. C. § 5502(d), relating to the employment of pensioners, are modified as set forth below in sub-paragraphs (i) and (ii) for any current pensioner whose effective date of retirement is on or before January 1, 2022, where such pensioner accepts employment as a substitute teacher employed by a school district in the State:

i. The provision of 29 Del. C. § 5502(d), requiring a 6-month separation of service prior to accepting employment under paragraph (a)(4) of section 29 Del. C. § 5502, is amended to require a one-month separation of service. Any persons who accepted employment under paragraph (a)(4) from January 11, 2022 until this sub-paragraph is rescinded, would have met the bona fide separation requirement and can continue such employment without impacting their pension rights, except to the extent that they exceed the $30,000 annual earnings limit after the expiration of sub-paragraph ii., below (exclusive of any amounts earned during the time sub-paragraph ii, below, was in effect).

ii. From January 11, 2022 until this sub-paragraph is rescinded, earnings from employment as a substitute teacher employed by a school district in the State under paragraph (a)(4) of 29 Del. C. § 5502, will not count towards the annual earnings limit of $30,000 set forth in 29 Del. C. § 5502(d).

2. Obligations for Mask Wearing in Child Care Facilities and Schools.

i. Definitions. For purposes of this Declaration of a State of Emergency, the term “mask” shall mean a type of mask or respirator recommended by CDC guidance available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html.

ii. Early Care and Education and School-Age Centers

1. All persons or associations conducting child care as defined in 14 Del. C. §3002A(1) shall recommend mask use by children ages 2 through pre-kindergarten and shall require mask use by children in kindergarten through twelfth grade, staff, family members, and visitors inside the child care facility, regardless of vaccination status.

2. Persons who have a medical condition or disability that prevents that person from wearing a mask can request a reasonable accommodation from the child care facility.

3. Masks are not required in child care facilities:

a. When seated at a table to eat or drink.

b. When asleep.

c. When engaged in any activity that makes wearing a mask not feasible, such as swimming.

d. When a person is in a personal space (i.e., single office) and others outside of that person’s household are not present.

e. When outdoors.

f. When children are not in the building.

4. All child care facilities that provide bus service to and from the child care facility shall recommend mask use by children ages 2 through pre-kindergarten and shall require mask use by children in kindergarten through twelfth grade, faculty, staff, and visitors riding school buses, regardless of vaccination status.

iii. Family and Large Family Child Care Homes

1. All persons or associations conducting child care as defined in 14 Del. C. §3002A(1) shall recommend mask use by children ages 2 through pre-kindergarten and shall require mask use by children in kindergarten through twelfth grade, staff, family members, and visitors inside the child care facility, regardless of vaccination status.

2. Persons who have a medical condition or disability that prevents that person from wearing a mask can request a reasonable accommodation from the child care facility.

3. Masks are not required in child care facilities:

a. When seated at a table to eat or drink.

b. When asleep.

c. When engaged in any activity that makes wearing a mask not feasible, such as swimming.

d. When a person is in a personal space (i.e., single office) and others outside of that person’s household are not present.

e. When outdoors.

f. When children are not in the building.

4. All child care facilities that provide bus service to and from the child care facility shall recommend mask use by children ages 2 through pre-kindergarten and shall require mask use by children in kindergarten through twelfth grade, faculty, staff, and visitors riding school buses, regardless of vaccination status.

iv. Schools

1. All schools that serve students kindergarten through twelfth grade shall require mask use by all students, faculty, staff, and visitors inside school buildings, regardless of vaccination status.

2. Persons who have a medical condition or disability that prevents that person from wearing a mask can request a reasonable accommodation from the school.

3. Masks are not required in school buildings:

a. When seated at a table to eat or drink;

b. When engaged in any activity that makes wearing a mask not feasible, such as swimming;

c. When a person is in a personal space (i.e., single office) and others outside of that person’s household are not present;

d. When outdoors; or

e. When students are not in the building except when students travel on school buses.

4. All schools that provide bus service to and from school shall require mask use by all students, faculty, staff, and visitors riding school buses, regardless of vaccination status.

5. For schools with student housing, masks are not required inside an individual student’s residence hall room.

C. STATE GOVERNMENT

1. Transportation. The Secretary of the Delaware Department of Transportation is authorized to issue waivers of state enforcement of laws and regulations applicable to commercial motor vehicles operating in support of a declared emergency in accordance with 21 Del. C. Chapter 45 and 49 CFR §390.23(a)(1)(i)(A).

D. MISCELLANEOUS.

1. This Order and any emergency rules or regulations effected therefrom remain effective until the termination of the State of Emergency, except as may be rescinded, superseded, amended, or revised by additional orders.

2. This Order has the force and effect of law. Any failure to comply with the provisions contained in a Declaration of a State of Emergency or any modification to a Declaration of the State of Emergency may constitute a criminal offense. 20 Del. C. §§ 3115 (b); 3116 (9); 3122; 3125. State and local law enforcement agencies are authorized to enforce the provisions of any Declaration of a State of Emergency. 

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