COVID-19 Update: Frequently Asked Questions

As we continue to receive updates and navigate the changing circumstances day-to-day, we would like to brief you about some of the questions we have been receiving from schools around the State:

Can we continue to pay hourly staff members if on extended closure?

R.C. 3319.081 provides that “All nonteaching employees…shall be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity. Nothing in this division shall be construed as requiring payment in excess of an employee’s regular wage rate or salary for any time worked while the school in which the employee is employed is officially closed for the reasons set forth in this division.”

Accordingly, those non-teaching employees covered by R.C. 3319.081 can and should be paid for “all time lost due to the closure of school” under the current circumstances.

R.C. 3319.08 provides the same rights for teaching employees. Keep in mind that neither statute provides a premium rate of pay. Only regular wages are required by the statutes. However, some collective bargaining agreements provide for premium pay for work performed during “calamity days.” Unions are likely to assert that premium pay should be provided for employees who report to work during the time that the schools are closed to students. You should consult with legal counsel about how to proceed if the union demands premium pay.

Can I require self-reporting of staff? 

You can request staff self-report if they are ill, under self-quarantine, or mandated quarantine. 

Employers must generally be careful in inquiring about medical conditions of employees. The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. One condition under which an employer may ask such questions is where the employee constitutes a “direct threat” to the health and safety of other employees. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. 

The EEOC has previously opined during the H1/N1 pandemic that where the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries (e.g., Do you have a compromised immune system?) and medical examinations (e.g., temperature readings). However, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. COVID-19 appears to be more severe than previous influenza pandemics and outbreaks both in terms of the rate of infection and the number of deaths and critical cases. Therefore, you are permitted to make inquiries about symptoms and susceptibility and to require self-reporting of employees.

Can I require self-reporting of students?

Since students have been ordered home, it is likely not necessary to issue a directive to families at this time.

Can employees use sick leave if self-quarantined?

It is understandable that employees would request sick leave while under self-quarantine. The sick leave statute, R.C. 3319.141, provides that employees “may use sick leave for absence due to personal illness, pregnancy, injury, exposure to contagious disease which could be communicated to others, and for absence due to illness, injury, or death in the employee’s immediate family.”  A strict reading of the statute could be interpreted to mean that the employee was actually exposed, and not just avoiding the possibility of being exposed.  Therefore, sick leave could be denied to an employee who has not actually been exposed to the disease.  Also note that FMLA is not available for employees who fear being exposed to a virus, as such fear does not constitute a serious health condition.

Additionally, employees not reporting to work due to the closure to students will receive pay for all time lost due to the closure as discussed above. Such employees would not need sick leave.  

Employers are permitted to be more generous than the law permits so there is a basis to allow the use of sick leave in these circumstances.  You should check your policy manual and the collective bargaining agreement to see if there is any language that differs from the statute. It is not clear whether the auditor follows a strict reading of the statute due to the unique nature of this situation. If you wish to grant sick leave for employees who wish to stay home as a matter of self-quarantine who are otherwise not exhibiting any symptoms, you should discuss it with your legal counsel before proceeding.

Can I discourage international travel … or ask about international travel?

You can both inquire about and discourage international travel, but any directives regarding those matters would not necessarily have a lot of weight from an enforcement standpoint. You can also inquire with families of whom you know have traveled internationally recently.  However, in light of the closure of school to students, and its potential extension to the end of the school year, this is likely not necessary in most circumstances.

Employees returning from international travel may be subjected to mandatory quarantine. Under these circumstances, sick leave would be appropriate.

Can I restrict an employee who appears sick/has a fever or wants to wear a mask?  I have an employee with a weak immune system, can they wear a mask?

R.C. 3313.71 provides the authority to send home an employee or student who is suffering from a communicable disease.  The statute provides that the school physician is to order such employees to be sent home.  There are not any court interpretations determining whether it must be a “school physician” which makes the call.  However, the Board has the authority to protect the health and safety of persons coming on to its premises and can, therefore, exercise such authority in these circumstances. Employees should be permitted, within reason, to wear appropriate safety equipment such as masks and gloves if they desire to. You should not send an employee home simply because the employee wishes to wear a mask or because an employee is of an age that is more susceptible to the disease. 

Keep in mind that discrimination laws regarding ADA accommodations are still in effect during this time. During a pandemic, especially one which constitutes a direct threat, as COVID-19 likely does, certain ADA protections are relaxed in order to balance public health and safety with individual rights.

During a pandemic such as this one, employers may:

  1. Send employees home if they display influenza-like symptoms;
  2. Inquire about the exact symptoms an employee is experiencing who reports feeling ill;
  3. Check employees’ temperatures (keep in mind that some people infected with COVID-19 may not have a fever);
  4. Inquire about potential exposure to persons returning from business or personal travel;
  5. If the employer has sufficient objective information from public health authorities to conclude that employees will face a direct threat if they contract COVID-19, the employer may ask an employee, without having exhibited any symptoms, whether the employee has a medical condition that the CDC says could make them especially vulnerable to influenza complications;
  6. Encourage remote working (where possible) as a prevention strategy; and
  7. Require the adoption of infection control practices at work including hand washing, handling practices, and wearing masks and gloves.

Remember that other ADA requirements are still in place. Accommodations that are already being provided unrelated to the pandemic must continue. For example, An accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In preparation for telework during a pandemic or other emergency event, the employer issues notebook computers to all similar employees. In accordance with the ADA, the employer must provide the employee with a notebook computer that has a screen-reader installed.

Court of Appeals Disagrees That a Student’s Right to Privacy Ends Upon Death

A dispute over the disclosure of student records has led to the Court of Appeals for Ohio’s Second Circuit to analyze whether a student’s right to privacy in education records extinguishes upon death.

Both federal and state laws protect the confidentiality of student education records and personally identifiable information. The Family Educational Rights and Privacy Act (“FERPA”) protects against the disclosure of education records without the prior written consent of the parent or guardian of the student. Education records are defined by the Act as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” The right to consent to the disclosure of student records transfers to a student upon reaching the age of 18, unless the student remains a dependent of their parents.  

R.C. 3319.321 also provides protection for student information. This statute is broader in its scope, forbidding the disclosure of any personally identifiable student information other than directory information.

The request at issue surrounded a former student who committed a mass shooting in August of 2019, killing 9 people and injuring 27. The shooter was killed by law enforcement officials at the scene. The Associated Press, among other media outlets, made requests to the school for records of the shooter, particularly discipline records. The school released only directory information, citing to the privacy protections of FERPA and R.C. 3319.321.

The media filed a lawsuit asking the Court to force the school to release the requested records. The media alleged that while a student’s right to privacy protections under the applicable laws transfers to the student into adulthood, there should be an exception that the right to privacy in this regard ceases upon death. 

The Court found the analysis inapplicable due to the school’s obligations under the laws in addition to the individual’s privacy rights conferred by the laws. The two are simply not comparable. The Court, noting that neither FERPA nor R.C. 3319.321 contains an exception for the death of a student, declined to create one from the bench.

State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools, 2019-Ohio-4187

Student Dress Code

A Federal District Judge recently ruled that a charter school dress code policy which required girls to wear skirts and prohibited girls from wearing pants or shorts, violates the equal protection clause of the U.S. Constitution. Many challenges in the past have rested on First Amendment grounds regarding freedom of expression. However, this case was brought on a theory of gender discrimination.

The Plaintiffs argued that the girls suffered tangible disadvantages due to the policy. The court found that the Plaintiffs established that “the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs.”

The Defendant, the Charter Day School, argued the dress code was designed to garner mutual respect between the boys and the girls, particularly in that the skirts represented visual cues to promote respect between the two sexes. Striking down the policy, the school argued, would remove those visual cues and hinder a sense of respect for the opposite sex. The Court noted that even if these were legitimate interests of the state, the school failed to show how the policy advanced such interests.

The Court further noted that school dress code policies have been upheld by numerous courts and that the state does have legitimate interests in the grooming and dress of students attending schools supported by the state. However, these interests must be addressed in a uniform, gender-neutral way that does not penalize a student simply for being one sex or the other.

Sick Leave Donation Program

The Ohio Attorney General has released a formal opinion finding that the board of education of a joint vocational school district (JVS) has no authority to establish a sick leave donation program for non-teaching employees of the district who are not members of a collective bargaining unit.

The JVS explained its donation program to the Attorney General thusly:

“The sick leave donation program would allow non-teaching employees to donate unused sick leave accrued by those employees into a bank for the use of eligible employees. Upon application and approval, unused sick leave in the bank would be accessible to an eligible employee, meaning that an employee with a serious illness could exhaust his or her accrued sick leave and then access the donated sick leave in the bank, all accrued by other joint vocational school non-teaching employees. The board of education itself would not provide any additional sick leave. The donation program would consist only of donated leave accrued by other non-teaching employees. Nor would there be any cash payment or any other incentive to any employee to compensate them for donating the sick time to the donation program.”

The Attorney General reasoned that as political subdivisions of the state, school districts are creatures of statute and can only act as expressly authorized or as may be necessarily implied to carry out such express grants of authority. Sick leave is a benefit school boards are permitted to provide their employees by statute (R.C. 3319.141). That statute provides that employees may use sick leave for their own personal illness or for illness of a family member. Because the statute limits the purposes for which sick leave can be used, a school board has no authority to permit sick leave to be used for another purpose, i.e., for the illness of another person who is not a family member.

The opinion, of course, does not apply to employees who are members of a collective bargaining unit who have negotiated the establishment of a sick leave donation program through collective bargaining. This is because, generally, collective bargaining agreements can supersede the requirements of statute, except where prohibited by law.

Districts should be cautious in permitting sick leave donation outside of the confines of a collective bargaining agreement. This opinion could be used as a basis for a finding for recovery for sick leave that is improperly paid to an employee under an unlawful donation program.

Crowdfunding and School Board Policy

“Crowdfunding” is the practice of funding a project by raising relatively small amounts of money from a large number of people, usually via the internet. In schools, crowdfunding helps teachers and schools to obtain funding and supplies.

Online Crowdfunding and How It Works

Crowdfunding websites vary in how they raise funds. Some well-known crowdfunding websites include GoFundMe, Adopt-A-Classroom, Kickstarter, Incited, and Donors Choose. Some of these websites will raise money and transfer it directly to the teacher or the school district. Other websites will raise money toward the desired products, which will be shipped to the school when the items are funded. This way, the teacher or school never receives any cash at all. Websites further differ in the amount of support and advice they will give teachers or school districts in securing these donations.

Ohio Auditor of State

In July 2018, the Ohio state auditor released a report titled Crowdfunding Classrooms, which was the outcome of a widespread survey of Ohio’s schools. One-fifth of Ohio districts responded to the survey. Among the districts that reported, the auditor found the following statistics related to crowdfunding policies and use of funds:

  • 55.4 percent prohibit crowdfunding
  • 59.0 percent have no crowdfunding policy
  • 26.2 percent don’t know if teachers are using crowdfunding
  • 56.2 percent of those who permit crowdfunding don’t know the amount raised in the last 12 months

Auditor’s Recommended Best Practices

The auditor suggests in its report that schools work with legal counsel and adopt a policy that incorporates as many of the following safeguards as possible:

  • Require that all campaigns be reviewed and approved by administration
  • Direct administrator to ensure proposal does not violate any federal/state law
  • Designate permissible crowdfunding websites
  • Require donations to be used for the stated purpose
  • Prohibit donations without board approval
  • Establish all donations as property of the school
  • Enter donations promptly into district inventory
  • Deposit into district bank accounts

Furthermore, the auditor recommended that every policy include the following financial controls:

  • Require that all crowdfunding campaigns be listed under the school’s name
  • Specify that donations are the property of the school district and paid directly to the district and not to the teacher
  • Require documentation of donations in financial ledgers for monetary donations or inventory for items

General Policy Guidelines

Districts should have a policy that dictates who may raise funds and which crowdfunding platforms may be used. A policy to ban crowdfunding minimizes risk to school districts, but it would also force districts to forego many of the potential benefits. Such a ban on crowdfunding may also be difficult for school districts to enforce. A ban on crowdfunding would require policing all of the crowdfunding platforms to ensure that the policy is being followed.

A policy that allows crowdfunding creates risk, but this risk can be minimized with the right safeguards in place so that schools can reap the benefits of crowdfunding. This policy should ensure that the school is not violating any state or federal laws, the money is properly accounted for, and the donations and materials are appropriate for the district.

A district’s policy should include a prohibition against any funds going directly to teachers. All funds raised should be in the name of the board of education and should be treated like any other funds of the board – accounted for and deposited in accordance with policy and state law. Donated funds should be used only for the purpose for which they were donated. Additionally, no student or teacher should receive a benefit from crowdfunding that is proportional to the level of participation by the teacher or student in raising the funds.

A centralized approval process for crowdfunding campaigns is recommended. Requiring an administrative review and approval of all proposed crowdfunding campaigns will provide safeguards against accidental violations of student privacy laws and will ensure the content and goals of the crowdfunding proposal are appropriate. For example, crowdfunding campaign materials that include a photo of a classroom with the students could violate privacy laws. Descriptions or narratives that reveal personally identifiable information also violate confidentiality. Additionally, administrators will want to ensure that the crowdfunding proposal does not imply that the district is falling short of its state and federal obligations, which may prompt inquiry by a regulating body.


Some existing sources of law are implicated by crowdfunding performed by public school districts in Ohio. The Ohio Revised Code mandates that all money be deposited with the treasurer within a specified time (R.C. 9.38). Specifically for public schools, R.C. 3313.51 establishes that the treasurer of the board of education is the treasurer of all school funds. This is important because the treasurer could be held liable through a finding for recovery for any unaccounted funds. For this reason, the treasurer’s office should be part of the crowdfunding process.

The Ohio attorney general has issued an opinion (OAG Opinion 85-085) that donations must be used for the purposes stated in a crowdfunding campaign. Ohio ethics law (R.C. 2921.43) includes some important considerations. Employees are not permitted to accept additional compensation for performing their duties. (OEC 2008-01). Teachers should not divert any amount of the funds raised for personal gain, as an administrative fee or for any other reason. Remember that any funds and items donated are school district property.