FFCRA leave guidance changes now effective

A lawsuit challenging the Department of Labor (DoL) FFCRA leave guidance was filed in April 2020 by the New York Attorney General. (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020) The decision of the federal district court invalidated four sections of the DoL regulations. The invalidated regulations included:

  • The persons covered as “health care providers” who could be excluded from the leave provisions of the Act,
  • Regulations stating the employer must permit intermittent leave under the EPSLA or EFMLEA,
  • Prior notice of leave provisions, and
  • Availability of leave if the employer does not have work for the employee to do.

DoL recently issued a new temporary rule with explanations of some of the provisions (intermittent leave) and clarification/amendment of others (notice of leave), effective September 16- December 31, 2020. Unless extended through additional legislation, the leave provisions in FFCRA (EPSLA and EFMLEA) expire at the end of December.

Find the notice in the Federal Register here: https://preview.tinyurl.com/yysmuzlg.

DoL clarified and expanded upon its interpretation on intermittent leave. An ongoing question for public schools has been how to administer the use of EFMLEA leave for child care when the employee’s child(ren) are on a hybrid schedule, attending in person and remotely from week to week or day to day. Updated regulations clarify that EFMLEA child care leave for parents whose students are on hybrid programs is not considered intermittent leave.

The rationale: because school buildings are closed to students on days when students attend remotely, remote days are considered a qualifying reason for leave. In contrast, when the child goes to school in person, the school is open. When the school switches back to remote learning, it is a new qualifying reason for leave. This guidance is different from previously-published guidance and is a new interpretation. Intermittent leave was addressed at questions #20-22 of the Dol “FFCRA Questions and Answers”. It is assumed this Q & A will be revised after the effective date.

DoL’s new explanation of the rationale as published in the Federal Register, 85 FR 57677 :
“The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.

In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.

This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.”

Teleworking employees: DoL clarified that an employee may take intermittent leave while teleworking for any of the FFCRA qualifying reasons if the employer permits it.

Notice and documentation of leave: The DoL also amended one regulation that required notice to the employer of the need for leave prior to taking the leave.

  • EPSLA leave: notice of the need for leave cannot be required prior to the leave. The revision states that notice of leave after the first day should be given “as is practicable.”
  • EFMLEA leave: if the need for the leave is foreseeable, notice should be given in advance. If not foreseeable, the employee must give notice “as is practicable.” Employees may be required to provide documentation including the employee’s name, dates for which leave is requested, qualifying reasons for the leave, and an oral or written statement the employee is unable to work.

What this means for your district:
Administering EPSLA and EFMLEA child care leave has been challenging. DoL’s interpretations and positions continue to evolve. These regulations clarify some of the questions we have been getting, although additional questions remain. Please consult with an EB attorney if you have specific questions about how the newly-effective regulations apply in specific situations.

Ohio Ethics Commission Finds Potential Violation of Ethics Law

A new formal opinion of the Ohio Ethics Commission was issued on April 17, 2020. It concludes that disclosures of discussions of a public body held in a properly-convened executive session that are legally confidential (pursuant to a statute) or designated as confidential reasons that are necessary and warranted may be found to be a violation of R.C. 102.03(B) of the ethics laws.

That statute prohibits a public official from recklessly disclosing or using confidential information acquired in his or her role as a public official without authorization, and is punishable as a criminal offense, a first-degree misdemeanor. The statute states:

No present or former public official or employee shall disclose or use, without appropriate authorization, any information acquired by the public official or employee in the course of the public official’s or employee’s official duties that is confidential because of statutory provisions, or that has been clearly designated to the public official or employee as confidential when that confidential designation is warranted because of the status of the proceedings or the circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.

The Commission emphasized that the decision about whether a public body that has designated an executive session discussion as confidential is legally confidential is made on a case by case basis. The confidentiality designation of the public body would be evaluated on the basis of the status of the proceedings or the circumstances under which the information was received, and whether preserving the confidentiality of the information is necessary to the proper conduct of government business.

If there is a particular statute that makes a certain discussion confidential, it is presumed to be confidential, and the release of that information is governed by the terms of that statute.

The Commission noted that documents reviewed in executive session do not become confidential as a result of a confidentiality designation or simply because they were reviewed in executive session. These documents must be evaluated as to whether they are public records pursuant to existing public records law.

This formal opinion is not exactly a new position of the Commission. A 1986 informal opinion reached the same conclusion. However, the issuance of the formal opinion makes it applicable to all Ohio public officials. While not everything discussed in executive session is statutorily confidential, it is a good reminder that certain discussions of the public body are entitled to confidentiality that may be enforced by law, and violations of that confidentiality may in some cases carry criminal sanctions under Ohio’s ethics laws.

COVID-19: FMLA Leave Expansion and Emergency Paid Sick Leave

The pandemic has resulted in the enactment of emergency federal legislation providing additional the amendments are part of the Families First Coronavirus Response Act (H.R. 6201), and the FMLA expansion portion is called the Emergency Family and Medical Leave Expansion Act. Additional provisions of the law that provide employer-paid sick leave are called the Emergency Paid Sick Leave Act.

These laws take effect fifteen days from the enactment of the law (March 18), which will be April 1st. Both of these provisions will be temporary, ending on December 31, 2020.

FMLA Leave Expansion

To be eligible for this type of FMLA leave, employees must have been employed only for thirty days (not the usual eligibility criteria of 1,250 hours in the preceding year).  The thirty days mean on the payroll for the 30 calendar days immediately prior to when the leave would begin.

Reasons for Leave

1. If a child’s school or place of care is closed, or the
child care provider is not available, and the employee is unable to
work or telework because they must care for the minor
child, the employee may use leave.

Pay for leave after first ten days 

The first ten days of this FMLA leave is unpaid, although the employee may elect to substitute vacation, sick, personal or medical leave for unpaid leave.  They also may use the Emergency Paid Sick Leave Act described below.  After that, the leave will be paid for up to twelve weeks.

After the first ten days, employees are to be paid at a rate of 2/3rds their regular rate of pay for the number of hours they normally work. The amount of pay for this sick leave is capped at not more than $200 per day, and continues up to a maximum of $12,000 (this is for the entire 12-week period, including the two weeks of leave which may be the emergency paid sick leave provided in the Act.

There is an averaging process provided in the law to determine the amount to be paid to an employee who works a varying number of hours.

Documentation

Employers may require documentation in support of expanded family medical leave just as you would for other FMLA requests.

Intermittent leave

The expanded FMLA leave for child care does not require that employers permit the leave to be taken intermittently.  However, if the employer agrees to do so, the leave may be taken intermittently.

Insurance benefits

Employers must maintain health insurance during the period of expanded FMLA leave for child care.

Right of restoration

Employers must restore the employee to an equivalent position unless the position has been eliminated or reduced due to economic reasons or other operating conditions that affect employment as a result of the public health emergency.

An “equivalent position” is one that provides equivalent benefits, pay, and other terms and conditions of employment. If the efforts of the employer to do so are unsuccessful, employers must contact them if such a position does become available for a period of one year.

Paid Sick Leave

Another part of the Families First Coronavirus Response Act is the Emergency Paid Sick Leave Act. This leave applies to school districts and, like the expanded FMLA provisions, it expires December 31, 2020.

Employers must immediately provide, as needed, eighty hours of paid sick leave to full time employees (regardless of the length of their employment) or an average of hours worked over a two-week period for part-time employees who meet the following criteria:

  1. Unable to work (or telework) due to an isolation or quarantine order related to COVID-19 (federal, state or local order);
  2. Has been ordered by a health care professional to self-quarantine due to concerns related to COVID-19;
  3. The employee is seeking medical diagnosis and is having symptoms of COVID-19;
  4. The employee is caring for an individual (law does not specify that it has to be a family member) subject to such an order
  5. The employee’s child’s school or place of care is closed or child care provider is unavailable (same reason as FMLA expansion), or
  6. The employee is experiencing any substantially similar condition as identified by the Secretary of Labor or Treasury.

For the first three conditions, hourly pay is the greater of the employee’s regular rate of pay, the federal minimum wage, or local/state minimum wage.  This is subject to a maximum of $511/day, up to $5,110 for the entire paid emergency sick leave period.

For the conditions from 4-6 on the list, pay is capped at 2/3 of the greater of the amounts listed above.  This is subject to a maximum of $200 per day, up to $2,000 over the two week period.

The leave is subject to a few conditions, including that:

  • The employee may not be required to find another employee to cover the hours they are using for sick time.
  • The employee may be required to return to work at the next scheduled shift after the need for sick leave ends.
  • The leave does not carry over from one year to the next.
  • The employer also may not require use of other paid leaves before using this emergency sick leave.

This leave is limited to two weeks for any combination of the reasons listed above.  The leave is not retroactive (prior to April 1, the effective date) and the employee may still use the leave even if the employer gave the employee paid leave for similar reasons prior to April 1, 2020.

Employers must post a notice of the availability of this sick leave. This notice is available at:

dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Violation of the provisions of the emergency paid sick time would be a violation of the Fair Labor Standards Act for failure to provide minimum wage and subject to the penalties of the FLSA.

Stay tuned

More changes and new provisions are possible as lawmakers and federal and state agencies respond to this situation. There are issues of interpretation with this new law that may be dealt with in additional legislation, future regulations, or a FAQ from the Wage and Hour Division.

This article will be updated to reflect changes in these particular provisions as needed.

COVID-19 Update: Public and Student Records Requests During a Pandemic

Your school district may be getting public records requests, and/or requests for health information concerning students, and you may have questions about how your school district may share information with parents, with public health authorities, and the media.

The Student Privacy Policy Office of U.S. Department of Education has recently (March 2020) issued guidance in the form of a Frequently Asked Questions (FAQ) that provides some answers about student records disclosures during the pandemic.

Let’s break it down in understandable bytes. The federal law on the confidentiality of student records is the Family Educational Rights and Privacy Act (FERPA) and Ohio’s student confidentiality law is found at Ohio Revised Code 3319.321. The issues that may come up during this pandemic are what records may be shared, with whom, when you may have students, staff, and their family members who may be affected by the COVID-19 virus.

FERPA generally protects the confidentiality of personally identifiable student information. That means schools must not release personally identifiable information about students without the consent of the parents of students under 18 years of age, and of students themselves who are over 18 and a legal adult. Directory information may be released if the student/parent has not opted out of such disclosures.

There are exceptions to FERPA. One of these is the “health and safety emergency” exception, which allows certain disclosures of personally identifiable information under certain circumstances to certain individuals or entities that are relevant during this pandemic.

If a school district determines there is a health and safety emergency; that is, an emergency in which it is necessary to protect the health or safety of students or other individuals, that requires the release of personally identifiable student information without consent, it may make disclosures of the personally-identifiable information of those students to address the emergency on a case-specific basis.  The district must evaluate the need for such disclosures and to whom such disclosures should be made.

There are some important considerations in the guidance. The first thing to remember is that the health and safety exception to FERPA is a limited exception and when using it, schools need to decide whether a release of normally-confidential information is warranted on a case-by-case basis.

Another way of saying this is that if there is a health and safety emergency (which the school district may determine in its reasonable discretion), FERPA allows disclosures to persons or entities that need that information for the purpose of protecting health and safety of a student or another individual.  It is not, however, a blanket release of information to all entities or persons equally. The guidance also states that these disclosures are “…limited in time to the period of the emergency and generally does not allow for a blanket release of PII from student education records.”

To whom may we disclose information during a health and safety emergency? 

There are some different ways this may come up. The first and probably easiest issue is the public health authority asking the school district for disclosures of personally identifiable information of students to track exposure and possibly for the purpose of notifying people who need to self-quarantine or who may have been exposed.

May the District disclose personally-identifiable information if the health department asks for it? 

The guidance says generally, yes. The guidance states “Public health officials may be considered ‘appropriate parties’ by an educational agency or institution under FERPA’s health or safety emergency exception, even in the absence of a formally declared health emergency. Typically, public health officials and trained medical personnel are among the types of appropriate parties to whom PII from education records, may be non-consensually disclosed under FERPA’s health or safety emergency exception.”

May the District release contact information for students and their parents to the public health department if asked by the health department to do so? 

Yes, if that information is needed and the district has made a determination that there is a health and safety emergency that requires such disclosure.

What about the media requesting lists of how many students are affected by the illness or the numbers of absences the district may have been seeing prior to schools being closed?

The guidance generally says no.  Disclosures to the media of personally-identifiable information of students affected by COVID-19 are not appropriate under this limited exception. It describes the media as not generally an “appropriate party” under FERPA’s health and safety exception. “Appropriate parties” are those who provide “…specific medical or safety attention, such as public health or law enforcement officials.”  If all identifying information has been removed (and disclosure would not allow a person to determine individual students affected) and the district has such a record, it may be able to comply with some requests for information.  Consult counsel if you receive such requests.

If students are affected by COVID-19 and are out sick, may the District disclose information to parents of other students?

The Department answered that some information could be disclosed only if the information was not personally identifiable. Consent would not be needed to disclose information that is not personally identifiable (although the district should make a case-by-case determination that disclosing the information will not allow people to identify the student who is absent due to COVID-19.)

The Department does state in the FAQ that in “rare situations during a health and safety emergency” that disclosure of the identifiable information about a specific student may be warranted. The FAQ uses an example of a wrestler who had close contact with other students, school officials might determine it was necessary to disclose the student’s identity to the parents of other students. This determination of whether the disclosure is “absolutely necessary” is made on a case-by-case basis dependent upon the situation.

The Department suggests making consent forms available to parents that specifically allow such disclosures to obtain consent to release personally-identifiable information in these circumstances. In a health and safety emergency as determined by the District, the exception would allow non-consensual disclosures of personally identifiable information. During these times, obtaining such consent may not be a priority crisis response. These consent forms could be implemented as part of emergency planning in the future, however. A sample form is available with the guidance should districts choose to attempt to obtain consent from parents.

If a school employee has the illness, could the district notify parents and students or the media? 

The Department notes that FERPA applies only to student records. Other state privacy laws may impact this issue, however, so a release of a school official or employee’s name to the public or the media should be made only in consultation with board counsel. Please note that the health department is not releasing personal information about people affected in its reports, only their general geographic area and sometimes their age.

However, disclosures of the identity of school employees affected to the health department would generally be authorized so that the health department may track contacts and notify those who may need to self-quarantine or be tested. The district itself also may communicate with parents and students about possible exposure to an individual affected by COVID-19, but should protect the privacy of the individual’s identity to the extent possible.

Does the District need to document when these disclosures are made and to whom? 

Yes. School districts that make such disclosures of personally identifiable information are required to make and maintain records of the disclosures that are made and the reasons for such disclosures. Schools must record the reason for the basis of the disclosure (i.e., “the articulable and significant threat to the health or safety of a student or other individual that formed the basis for the disclosure and the parties to whom the agency or institution disclosed the information”) and to whom the disclosures were made in the student’s record, for each student for whom information was disclosed.

These disclosures must be retained in the education record as long as the records are maintained. Parents and eligible students (over 18) may view the educational records so they would see if such disclosures were documented.

Public records requests will need to be handled generally in the same way as would be ordinary for your office. You will still need to respond to records requests within a reasonable time, but what is reasonable under these circumstances may vary based on the ability of the district to have adequate staff available during this crisis to respond. Please call to discuss these issues with our office. All of our attorneys are well-versed in public records law.

Food Allergies and Special Education

Food Allergies and Special Education

If it seems like there are more food allergies today, there are. Today, about 8% of all children have food allergies, an increase of 50% in ten years. This translates into 1 in 13 children, or about 2 per classroom.  Individualized plans for the safety of each student with an allergy should be made to avoid exposure and reactions.

Students with food allergies may be eligible for special education supports and protections. For instance, a student could be IDEA- eligible as “other health impaired” if the allergies adversely affect learning or the student needs special education/related services due to the allergies. More commonly, students with food allergies may be eligible for a 504 plan if they have a physical impairment that substantially limits one or more major life activities. In the case of allergies, this could include breathing, immune system function, respiratory function, or learning. Districts may not discriminate against a student with a disability or deny them participation in school programs or activities. Schools IEP and 504 teams should discuss how allergies will be handled for students according to their particular allergy and its severity.

Individualized plans for the safety of each student should be developed to avoid exposure and reactions. The chosen accommodations must be implemented during all aspects of the school district’s activities and operations.

To determine if a student is eligible under 504 for a food allergy, district must screen out the use of medications or other measures to control the allergy. It is important to note that schools do not have to provide a risk-free environment, only a reasonably safe environment.

It is probably not surprising to you that the issue of accommodation of children with food allergies in schools has been the subject of special education hearings and litigation. Districts sometimes have to contend with diverse perspectives and demands, which they must reconcile on a daily basis. Here is a short summary of some 504 cases that may sound familiar to you.

In one case, a high school denied a student participation in a culinary arts program due to concerns about the student’s severe allergies to peanuts, dairy, egg, kiwi and crab. The student did not have a 504 plan at the time, but did have an emergency health plan to address exposure and response to a reaction. The student’s allergist had filed a letter stating the student could participate as long as he did not eat any of the foods prepared with ingredients to which he was allergic, and that he wore gloves when handling peanuts. The District attempted to contact the allergist one time, and did not contact him after that prior to making the decision to exclude the student. The student filed a complaint with the Office for Civil Rights, alleging disability discrimination. OCR found that the district had treated the student as a student with a disability even though it had not qualified him as one by excluding him from the program. They went on to find that the district had violated Section 504 procedurally, as it did not make a decision about the student’s exclusion with persons knowledgeable about the issues. (Bethlehem (NY) Central Sch. Dist. Office for Civil Rights, Eastern Division, NY, 52 IDELR 169, 109 LRP 30964)

Another case dealt with a student on an IEP whose allergy to peanuts and tree nuts was a life-threatening, airborne allergy. Initially, the District agreed that the student should be educated at a smaller private school that put into place significant protocols and regulations to ensure the student’s safety. The District proposed in a new IEP to change his placement to a public school on the basis that the student could be safely accommodated. This student also had autism with communication deficits, such that he would be unable to communicate his physical distress if he were having an allergic reaction. The parents rejected the proposed IEP and filed for due process. In a detailed decision concerning the peanut-free accommodations provided by the private school and the proposed peanut-restricted accommodations of the public school, the hearing officer found that the proposed IEP met the requirements of the law, which require only a reasonably safe environment, and plans in the IEP to ensure the student’s safety were adequate to prevent exposure and deal with a reaction if it did occur. (In Re: Student with a Disability Kentucky State Educational Agency 1213-16, 114 LRP 19510)

Finally, there was the Michigan case of a mother who refused to comply with the peanut free school building to accommodate another child who had a life-threatening, airborne peanut allergy. She wrote to the school, stating “I will not be cooperating not participating in the School’s 504 plan to another student. My child and I are not subject to, nor bound by, the provisions of the Rehabilitation Act….to meet my child’s needs, I will provide my child with the proper nutrition in her school lunch that I, in my sole discretion, deem appropriate.”

She filed a lawsuit seeking to enjoin the district from implementing the school-wide ban on nut products and requested money damages. She also alleged that her rights to equal protection and due process under the state and federal constitution were violated, and her child experienced unlawful search and seizure because her lunches were checked and when peanut items were found, replaced with appropriate alternatives.

The court of appeals rejected all her claims, finding that she lacked standing to challenge the 504 plan, that the school district’s peanut-free school policy was rationally related to a legitimate government interest, defeating the equal protection and due process claims. As to the unlawful search and seizure, the court stated that the school only looked for and removed banned items based on the parent’s notice to the school that they would not comply with the reasonable restrictions. (61 IDELR 231)

Practical takeaways

The most common food allergies are peanut and tree nuts, shellfish, milk, eggs, fish, wheat and soy. Some allergies are very severe, such as students who could have a life-threatening reaction to airborne particles of peanuts.

There are good resources for school professionals on ensuring a reasonably safe environment for students who have these allergies, and developing plans and emergency plans to accommodate the allergy to prevent a reaction, and to deal with a reaction if it occurs. The Centers for Disease Control has some great resources all gathered on one page, at https://www.cdc.gov/healthyschools/foodallergies/index.htm, including Food Allergy Guidelines FAQ and Voluntary Guidelines for Managing Allergies. Both of these resources and many others, including information for school nurses and more, may be found on the CDC page.

Food allergy management is increasingly a common issue. Staff training on preventing exposure, recognizing signs of a reaction, responding with medication or the use of an Epi-pen, including environmental management in terms of cleaning surfaces and other items used in instruction, transportation staff and substitute teacher/aide training are all aspects of food allergy management that require ongoing attention. School staff, including IEP and 504 teams, should discuss food allergies and take appropriate steps to ensure students with allergies are properly accommodated.

Parent, staff and community education is likewise an ongoing effort in the management of food allergies in schools, involving education on watching ingredients in school snacks, lunches and the cafeteria, providing ingredient lists, and more. If you have an IDEA or 504 plan issue involving a food allergy, the EB special education team can assist in ensuring your team’s compliance with procedural and substantive requirements.

“Food Allergen Icons” by Milos Radojevic is licensed under CC BY-NC-ND 4.0