by Giselle Spencer | Sep 25, 2015 | Board Policy & Representation, Construction & Real Estate, General, Labor and Employment, Legislation, School Finance, School Management, Special Education, Student Education and Discipline
As with most other provisions of the budget bill (Am. Sub. HB 64) some significant provisions impacting Ohio school districts go into effect on September 29, 2015, including the following:
- The maximum amount of a scholarship awarded under the Autism or Jon Peterson scholarship programs increases to $27,000 (up from $20,000).
- School districts must offer real property it intends to sell first to a “high performing community school,” then to other community and college preparatory boarding schools located in the district.
- ODE, in conjunction with an Ohio educational service center association and an Ohio gifted children’s association, must complete and submit a feasibility study for establishment of sixteen regional community schools for gifted children.
- The State Board must develop rules waiving any additional coursework requirements for renewal of an educator license for teachers who are consistently high performing.
- The duration of a pupil activity permit for individuals holding a valid educator license is changed from three (3) years to the same number of years as the educator license.
- The State Board of Education will develop a standards based framework for the evaluation of school counselors. Furthermore, all school districts must adopt a counselor evaluation policy by September 30, 2016, that conforms to the framework and will be implemented beginning in the 2016-2017 school year (will include annual evaluations with ratings of accomplished, skilled, developing, and ineffective just like OTES).
- The alternative teacher evaluation framework is revised to decrease SGM to 35%, maintain the performance rating at 50%, and authorize school districts to determine the appropriate measure or combination of measures for the remaining 15%.
- Exemplary community schools may now operate a preschool program for general education students.
- School districts may enroll under interdistrict open enrollment policies an adjacent or other district student who is a preschool child with a disability. ODE will deduct $4,000 from the resident district and pay that same amount to the enrolling district.
- School districts cannot appropriate monies to purchase an assessment developed by PARCC for use as the state elementary or secondary achievement assessments. Additionally testing for the 2015-2016 school year is reduced.
- Safe harbor provisions in effect during the 2014-2015 school year for state report cards are extended by two years.
- School districts may now enter into a contract with a health care provider for the provision of health care services for students.
- The new requirements for issuance of diplomas to home school students and students from non-chartered nonpublic schools are now in effect.
STEM schools can now enroll out-of-state students.
- Schools may install security doors or barricades as part of an emergency management plan.
- The filing date for financial disclosure statements with the Ohio Ethics Commission is May 15 (instead of April 15).
by Erin Wessendorf-Wortman | Mar 26, 2015 | General, Labor and Employment
In a decision issued March 25, 2015, the U.S. Supreme Court decided that the Pregnancy Discrimination Act mandated that employers must provide accommodations to pregnant employees when needed if the employer provides accommodations to other employees with similar work restrictions. Young v. United Parcel Service, No. 12-1226 (Mar. 25, 2015).
In the underlying case, Ms. Young was a part-time driver for United Parcel Service (UPS) who was advised by her doctor, when she became pregnant, that she could not lift more than 20 pounds. UPS required drivers to be able to lift up to 70 pounds. UPS informed Ms. Young that she could not work while under a lifting restriction, and refused to provide Ms. Young with an accommodation for her pregnancy-related lifting restriction. Ms. Young consequently stayed home without pay during most of her pregnancy, eventually lost her employee medical coverage, and sued UPS alleging violations of the Pregnancy Discrimination Act.
The U.S. Supreme Court, though sending the case back to the trial court, held that policies may have the effect of discriminating against pregnant workers if the policies treat pregnant women different than similarly situated non-pregnant workers. For example, if a policy only permits on-the-job injured workers with accommodations, but does not provide pregnant workers with accommodations even though the pregnant workers have the same restrictions, the policy will run afoul of the Pregnancy Discrimination Act. Employers should be cautious when applying policy to ensure that the effects of the policy are not discriminatory towards pregnant workers.
This decision should be read in conjunction with the Equal Employment Opportunity Commission’s guidance regarding pregnant employees that was released on July 14, 2014. This guidance was discussed in Ennis Britton’s September 2014 School Law Review Newsletter. Together, the U.S. Supreme Court’s decision and the Guidance from the EEOC serve as reminders to employers that pregnancy conditions may be protected, and employers may be required to provide reasonable accommodations for pregnancy-related conditions.
by Erin Wessendorf-Wortman | Mar 17, 2015 | General, Labor and Employment
On February 25, 2015, the U.S. Department of Labor issued a Final Rule changing the Family and Medical Leave Act of 1993 (“FMLA”) definition of “spouse.” Effective March 27, 2015, spouses in same-sex marriages shall have the same opportunity as spouses of heterosexual marriages to exercise FMLA rights regardless of where they live. Therefore, even though Ohio prohibits same-sex marriage, if a couple was legally married outside of Ohio in a state that recognizes same-sex marriage, the same-sex spouse(s) must receive the protections of FMLA.
The U.S. Department of Labor issued this new rule in the wake of the United States Supreme Court decision in U.S. v. Windsor where the Court deemed the federal Defense of Marriage Act’s definition of spouse and marriage, which was limited to heterosexual marriages, unconstitutional.
The Final Rule modifies the definition of “spouse” in several ways.
- The definition of “spouse” will use a “place of celebration” rule rather than a “state of residence” rule. This means that the same-sex spouses who reside in a state that does not recognize same-sex marriage, but were legally married in a state that does, will be considered spouses under FMLA.
- The definition of “spouse” will expressly include persons in lawfully recognized same-sex and common law marriages, as well as marriages that were validly entered into outside of the United States, so long as those marriages could have been entered into in at least one state.
This change is intended to create a consistent application of FMLA rights across the country, even when different states have different laws regarding the underlying marriages. Further, this definitional change means that eligible employees, including those in a same-sex marriage, regardless of where they live, will be able to: take FMLA leave to care for their spouse with a serious health condition; take qualifying exigency leave due to their spouse’s covered military service; or take military caregiver leave for their spouse so long as the couple was legally married in a state that recognized the marriage.
Another change within this Final Rule entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met. This Final Rule also entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.
Therefore, effective March 27, 2015, employers covered by FMLA must follow the Final Rule changes promulgated by the U.S. Department of Labor, including this new definition of “spouse.” Currently, this change will only have FMLA implications, and will not impact other employment aspects for Ohio school districts (i.e. sick leave policies, benefits, etc.). However, by the end of June 2015, the U.S. Supreme Court should decide on whether state same-sex marriage bans are constitutional. If the U.S. Supreme Court decides that state same-sex marriage bans are unconstitutional, same-sex married couples will be entitled to all benefits received by heterosexual married couples.
by Pamela Leist | Mar 17, 2015 | General, Labor and Employment, Special Education
USDHHS Center for Medicare & Medicaid Services recently withdrew its prior guidance on the “free care” policy as expressed in the School-Based Administrative Claiming Guide. Under CMS’s new guidance, Medicaid reimbursement is available for covered services under the approved state plan regardless of whether there is any charge for the services to the beneficiary or the community at large. Also under CMS’s new guidance, schools are not considered to be legally liable third parties to the extent schools act to ensure that students receive needed medical services to access a free appropriate public education consistent with federal law. The guidance also states that even if a state determines that schools are legally liable third parties, the Medicare statute contains an exception which requires that Medicaid serve as the primary payer to schools and providers of services in an IEP under IDEA; noting that nothing in IDEA permits states to reduce medical or other assistance available.
by Pamela Leist | Jul 31, 2014 | Labor and Employment, School Management
As July comes to a close, schools across Ohio have begun to gear up for another school year. Yet just when you think you have put the chaos of staffing buildings and assigning students behind you, inevitably a teacher who would be very hard to replace at this juncture approaches the district and provides notice that he or she plans to resign to accept a position elsewhere. The question becomes whether the district must release the teacher from his contract. Before you agree to such a proposal, keep the following in mind.
Ohio law places strict limits on when a teacher may terminate a contract of employment absent consent from the board of education. Under ORC §3319.15, a teacher must provide a district with written notice that he or she wishes to terminate an employment contract each summer by July 10th. The law prohibits teachers from terminating a contract beyond that date, or at any point during the school year. The law also states a teacher must provide at least five days’ notice to the board before voluntarily terminating any agreement.
Interestingly enough, a board of education cannot seek an injunction in court to force a teacher to return to work if he or she attempts to resign beyond the narrow statutory window, or simply refuses to show up for work after the July 10th deadline. Such an injunction would violate the state and federal Constitutions’ prohibitions against involuntary servitude (U.S. Constitution, Amendment XIII, and Ohio Const. Art. I).
However, a district is not without some form of recourse. A school district can challenge violations of ORC §3319.15 through the Department of Education. The State Board of Education adopted the Licensure Code of Professional Conduct for Ohio Educators in 2008. Under the Code of Conduct, the State Board of Education may terminate or suspend a teacher’s license for abandonment of a contractual agreement without consent from the employing Board of Education. A teacher’s failure to comply with the law could thereafter have a significant impact on the individual’s future teaching career.
Questions? Contact your district’s legal counsel for more information.
by Pamela Leist | Jul 3, 2014 | Labor and Employment
The U.S. Supreme Court issued yet another precedent-setting decision this week for employers. In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. _____ (June 30, 2104), the Supreme Court held in a 5-4 decision that regulations which require employers to provide health insurance coverage for certain types of contraceptive drugs violate the religious rights of company owners who oppose the drugs for religious reasons.
The case was brought by three closely held for-profit corporations, Hobby Lobby, Mardel, and Conestoga Wood Specialties, to challenge an Affordable Care Act (“ACA”) regulation that required non-exempt employers to provide health insurance plans that covered twenty forms of oral contraception. Four of the twenty drugs prevented development of a fetus post-conception. The owners of the companies, all of whom espouse a Christian ideology, believed that termination of pregnancy post-conception violated their religious beliefs.
The companies initially filed requests for injunctions against the U.S. Department of Health and Human Services (“HHS”) to prevent enforcement of the ACA regulations, claiming the regulations violated the Religious Freedom Restoration Act of 1993 (“RFRA”). RFRA prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless the action constitutes the least restrictive means of serving a compelling government interest.
The Supreme Court first acknowledged that the owners of the companies have sincerely held religious objections to abortion, and the four contraceptive methods at issue are considered abortifacients. The Court next considered whether the regulations imposed a substantial burden on religious exercise. The Court held that they did because corporations were required to either comply or face penalties of up to $475 million per year. Finally, the Court concluded that while the regulations served a compelling government interest, they were not the least restrictive means by which the government could serve that interest. HHS had already created an alternative system that enabled religious nonprofits to exclude the contraceptives from employee health insurance cost-sharing benefits. Women who are covered by the system can still access the drugs, but their employers do not share the cost. The Court reasoned that for-profit corporations should also be able to participate in the alternative system.
The majority rejected the argument that corporations were not defined as “persons” under law, but instead expanded RFRA and potentially other federal protections to corporations now and in the future. They also disagreed with the claim that the plaintiffs could reduce the burden by electing to drop insurance coverage and thus reduce the penalties, citing the fact that employers would be a significant competitive disadvantage if they stopped offering health insurance to employees.
Justice Ginsberg, writing for the dissent, criticized the majority opinion and argued that the decision forced women who do not necessarily share the religious views of their employers to absorb the cost of contraception. Ginsberg cited a national study that concluded out of pocket expenses for women were as much as 68% higher than for men. Ginsberg also summarily disagreed with the majority’s conclusion that a for-profit corporation was a “person” covered by RFRA.
Ultimately, the Supreme Court decision in Burwell will force courts to reexamine the rights of corporations across the nation, and could have a potentially far-reaching impact on all employers in the near future.
