by Pamela Leist | May 5, 2020 | COVID-19 (Coronavirus), General, Labor and Employment, School Management
On
April 30th, 2020, the Ohio Department of Health Director, Dr. Amy Acton, issued
two revised orders that will impact school operations at least in the short
term. These orders will cover school operations through June 30th at a minimum.
It’s a wrap
– concluding school operations for 2019-2020.
The first order directs schools to remain
closed to students through June 30th, 2020. However, the Director clarifies
that the order does not prohibit administrators, teachers, staff, vendors, or
contractors from showing up for work. Rather, administrators are tasked with
determining who will have access to the buildings and are encouraged to promote
practices such as social distancing and frequent hand washing. The order
encourages administrators to consider remote work options when possible.
The
order also specifically excludes a number of activities and events that may
occur at schools, such as voting, food services, health services, and
charitable works, as well as “targeted” and other educational programs and
activities. While schools have the discretion to determine what types of
programs and services may be provided, it should do so with caution and only
after consulting with the local health department and legal counsel. Further, a
school district must obtain written approval from the local department of
health before the activities may be held and then must submit a copy of the
written approval to both the Ohio Department of Health and the Ohio Department
of Education.
Schools
are expected to follow the social distancing guidelines published by the Ohio
Department of Health while conducting activities. Local law enforcement and
other officials who are tasked with enforcing the order are also directed and
encouraged to contact local health departments with questions and for opinions
about implementation.
Because
there are many practical and legal implications as you determine what
operations will resume, it is very important to consult with your
administrators, local health departments, and legal counsel as you make plans. Click here to review the order.
Business
as Usual? Not so fast!
The second order, which will remain in effect
through May 29th, 2020, addresses how residents and the majority of businesses
will operate during much of May. The stay-at-home requirement remains for
residents, although they are permitted to engage in business activities
authorized by the order. Individuals who are returning to the state are
encouraged to self-quarantine for fourteen days.
The
order allows most businesses to resume operations as long as they meet
workplace safety standards. These standards changed several times, but as of
May 1st included the following:
- Employees
must wear face masks or “face coverings” at all times unless an exception
applies; it is recommended that visitors do as well.
- Employers
and employees will conduct daily health assessments to determine if someone is
“fit for duty.”
- Employees
who report for work will maintain social distancing (people will stay 6 feet
apart) and will also sanitize and wash hands regularly.
- Worksites
will be cleaned throughout the workday (for high touch surfaces), as well as at
the close of each day or between shifts.
- To
meet social distancing guidelines, buildings will limit the number of visitors
and employees to 50% of the building capacity established by the fire code.
There
are specific rules about face coverings and masks, including when employees are
not required to wear them in the workplace. The exceptions include the
following:
- Masks/coverings
are prohibited by law or regulation.
- Masks/coverings
are in violation of a documented industry standard.
- Masks/coverings
are not “advisable” for health reasons.
- Masks/coverings
violate a business’s documented safety policy.
- Employees
are working alone in an area and coverings are therefore not necessary.
- There
is a practical/functional reason why an employee should not wear a covering or
mask.
At
a minimum, facial masks or coverings should be made of cloth and should cover
an individual’s mouth, nose, and chin. An employer must be able to provide
written justification for any exception if requested to do so.
Employers
are expected to “immediately report” when any employee is diagnosed with COVID-19
and will work with the local department to identify others who may have been
exposed. They are also expected to send employees home when they show signs of
the illness. When possible, a building site will be closed until it can be
professionally cleaned. Buildings may be reopened in consultation with the
local health department.
Paragraph
20 of the order contains a more specific list of steps that businesses are
expected to comply with as operations resume, broken down by type of business.
The order specifies requirements for manufacturing, construction, consumer
retail and services, and general office environment. Of course, schools are
governed by the separate order summarized above.
Finally,
the order includes a list of businesses that must remain closed for the time
being, including schools (at least as to student attendance), most childcare
services, beauty salons, entertainment and recreation facilities, and
restaurants/bars. These businesses may only engage in minimum basic operations
as defined by the businesses.
Click here to review the order.
Possible
Challenge to Orders Being Proposed in the House
State Rep. John Becker
of Clermont County plans to introduce a bill that would repeal the current
health orders, and make any future orders issued by the Director of Health
advisory unless and until those orders are approved by the General Assembly.
The bill would focus on speeding up Ohio’s return to normal business
operations. Stay tuned for more information about this and other efforts to change
the state’s direction.
We Can Help!
Many challenges and opportunities continue to present themselves during this pandemic – it is critical that you rely on credible sources of information to remain up-to-date. It is also important for you to consider your district’s specific needs as you develop plans, and remember that there is no “one size fits all” approach. Make sure you discuss your details and situation with legal counsel to determine how you can effectively implement these and other orders that arise.
by Ryan LaFlamme | Apr 16, 2020 | General, School Management
In two recent cases, a court of appeals has upheld political subdivision immunity in favor of school boards who have been sued by students and/or their parents.
In the first case, decided on March 26, 2020, the Court of Appeals for the Tenth District found in favor of the school board when the board requested the case be dismissed on immunity grounds. The case involved claims that, during the school’s annual class rocket launch, one of the rockets veered off course and struck appellant on her right lower leg, causing burns and scarring. The complaint further alleged that the teacher who supervised the launch failed to take proper precautions in launching the rocket. Additionally, alleged the school board permitted an unsafe environment and failed to require proper instruction. The court rejected the plaintiff’s argument that the accident was due to a physical defect on the grounds or buildings owned by the school district, therefore destroying the Board’s asserted immunity defense. The Court found that the rocket failure did not result from a physical defect on the grounds or buildings of the school district, and further, that the teacher exercised judgment and discretion in conducting the experiment. The Court opined that so long as the teacher did not act in a wanton or reckless manner, the teacher and the Board were immune from liability. An individual is deemed to act wantonly if that person acts without consideration of possible harmful consequences. A person who is reckless is aware that one’s conduct creates an unreasonable risk of physical harm to another, and proceeds anyway.
In a separate Tenth District case, also decided on March 26, 2020, the court upheld the immunity defense for a school board and its athletic staff after a sixteen-year-old student-athlete drowned while on a team basketball summer beach trip to Fripp Island. Here, the Court found that immunity “extends to most school activities and administrative functions of the educational process, even if not directly comprising part of the classroom teaching process.” The trip was organized by the head varsity basketball coach, whose job description indicates that the position is a year-round assignment, and the trip counted toward the number of days that the coach is permitted to provide organized basketball instruction to the team, per the Ohio High School Athletic Association (“OHSAA”) guidelines. The connection of the outing to functions of the educational process was considered by the court. The athletic director, the principal, and the superintendent were aware of and approved the Fripp Island trip. The school district provided a vehicle to transport players, the team members wore their school practice uniforms while they participated in practice, and participated in scrimmages against other teams during the five days of the trip. Similarly, the Court found that the coach and staff did not act in a reckless or wanton manner and thus were immune from liability in the exercise of discretion and judgment that are part of their job duties.
These cases emphasize that Ohio courts will recognize and enforce the immunity defense when properly applied and in the absence of wanton, reckless, or otherwise irresponsible actions on the part of district staff. The extension of this coverage to activities often seen as outside the scope of the educational process enlarges staff protections in its many areas of student supervision.
Douglas v. Columbus City Schools Bd. of Edn., 2020-Ohio-1133
Michael v. Worthington City School Dist., 2020-Ohio-1134
by Ryan LaFlamme | Mar 27, 2020 | COVID-19 (Coronavirus), General, Labor and Employment, Unemployment
Districts should expect to see a rise in unemployment claims due to the current pandemic. Ohio received 187,000 claims during the week of March 15-21. Substitutes, in particular, are likely to make claims during this time.
Governor DeWine has issued an order (EO 2020-03D) to ease the process of obtaining unemployment benefits. Employees who are ordered to stay home or isolated by an employer or public health authority, whether infected or not, will qualify for benefits so long as the employee is otherwise eligible. The basic requirements for eligibility for benefits are that a claimant has worked a sufficient number of hours and has earned a sufficient amount of pay during a period referred to as the “base period.” The base period is the first four of the last five completed calendar quarters at the time the claim is filed. (Claims filed in March would be calculated on the four quarters beginning October 1, 2018, through September 30, 2019.) Individuals must have at least 20 weeks of employment and an average weekly wage of $269 during the base period of the claim.
ODJFS issued a mass-layoff number (2000180) that employees can use to expedite the handling of their claim. Employees subject to RIF due to COVID-19 can use this form and reference number. http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/.
Substitute employees may file claims for lack of work due to the ordered shutdown of the school to students. Outside of the context of a shutdown, districts may attempt to challenge lack of work claims by substitutes, due to the nature of the assignment not having guaranteed hours or days of work per year. Many substitutes pick and choose their own assignments. Those arguments will not be applicable, where, as here, there are no assignments for the substitute to choose from. Therefore, such employees are much more likely to receive benefits under these circumstances.
Additional benefits of the order are that certain benefit recipients will not be subject to the work search requirement during the period of the emergency. All claimants, however, will continue to be required to be “able and available for work,” in order to receive benefits.
Finally, penalties against employers for failing to provide reports or make payments during the emergency declaration period.
The merits of each claim are fact dependent and may be subject to challenge even in light of the order. Please do not hesitate to contact an attorney at Ennis Britton to discuss your particular claim.
by Jeremy Neff | Mar 25, 2020 | General, Special Education, Student Education and Discipline
The long-running Doe v. Ohio Department of Education litigation was back in the news earlier this month. The settlement became final and effective nearly three decades after the lawsuit was initially filed. Ennis Britton previously notified clients of the proposed settlement in December when the Ohio Department of Education’s Chief Legal Counsel sent a notice to districts that a proposed settlement has been reached. To be clear, no individual school district was a defendant in this case. Defendants included the State of Ohio, the Governor, the State Superintendent of Public Instruction, and the Ohio Department of Education. The plaintiffs – parents of students with disabilities and the students themselves – alleged that the defendants failed to ensure that students with disabilities were adequately educated in compliance with the law.
A hearing was held on February 11, 2020, to determine whether final approval would be given to the proposed settlement that circulated in December 2019. The settlement has been approved and took effect earlier this month. The settlement covers a five year period and will focus on eleven priority districts (Canton City, Cleveland Metropolitan, Columbus City, Cincinnati Public, Toledo Public, Dayton Public, Akron Public, Youngstown City, Lima City, Zanesville City, and East Cleveland City School Districts). During the settlement period, ODE will develop a plan to improve inclusion and outcomes and will implement and monitor the implementation of the plan in the priority districts.
Ennis Britton’s Special Education Team anticipates it is very likely that ideas and expectations from the plan for the eleven priority districts will have broader application in the long run. Thus, even districts that are not initially prioritized by the settlement are likely to feel the effects of the settlement. It will be important for all school districts to monitor the implementation of the settlement and to advocate for both reasonable expectations and appropriate additional funding to support whatever aspects of the settlement plan are given broader application to all of Ohio’s school districts.
Ennis Britton’s Special Education Team will continue to update our clients on the implementation of the Doe settlement.
by Hollie Reedy | Mar 23, 2020 | COVID-19 (Coronavirus), General
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:
- Unable to work (or telework) due to an isolation or quarantine order related to COVID-19 (federal, state or local order);
- Has been ordered by a health care professional to self-quarantine due to concerns related to COVID-19;
- The employee is seeking medical diagnosis and is having symptoms of COVID-19;
- The employee is caring for an individual (law does not specify that it has to be a family member) subject to such an order
- The employee’s child’s school or place of care is closed or child care provider is unavailable (same reason as FMLA expansion), or
- 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.
by Ryan LaFlamme | Mar 19, 2020 | COVID-19 (Coronavirus), General
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:
- Send employees home if they display influenza-like symptoms;
- Inquire about the exact symptoms an employee is experiencing who reports feeling ill;
- Check employees’ temperatures (keep in mind that some people infected with COVID-19 may not have a fever);
- Inquire about potential exposure to persons returning from business or personal travel;
- 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;
- Encourage remote working (where possible) as a prevention strategy; and
- 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.
