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 Robert McBride | Mar 26, 2020 | Labor and Employment, School Finance, School Management, Unemployment
Many public employers are considering staffing adjustments in light of the coronavirus and its impact on available work. For those employees not covered under contracts that must be paid in the case of an “epidemic or other public calamity” pursuant to RC 3319.08(B) and 3319.081(G), layoffs are being contemplated. In order to have all the information on the financial impact of such a decision, the public employer should consider whether it is a “contributory employer” or a “reimbursing employer.”
Generally speaking, public employers are reimbursing employers. Essentially, reimbursing employers are self-insured and will be billed dollar-for-dollar by the Ohio Department of Jobs and Family Services for claims paid. Public entity employers who have elected to become a contributory employer have paid unemployment tax. Contributory employers will have their claims mutualized with other employers in the state and will not have to reimburse on a dollar-for-dollar basis. Determining if the public entity is a contributory employer or a reimbursing employer will be necessary to determine how much will be saved via staffing reductions.
The Coronavirus Aid, Relief, and
Economic Security Act (the CARES Act) provides that reimbursing employers may
be reimbursed for one-half of the amounts paid into a state unemployment trust
fund between March 13, 2020, and December 31, 2020.
If you have any questions regarding unemployment compensation issues, please reach out to any of the Ennis Britton lawyers.
by Giselle Spencer | Mar 9, 2020 | General, School Management
Last week, U. S.
Secretary of Education Betsy DeVos announced plans for a new compliance review
and data collection initiative to address the rise in sexual assaults in K-12
education, this time targeting the actions of adult employees toward school
students. Among other things, the new
initiative will implement provisions to prohibit public schools from
reassigning employees accused of sexual assaults against students.
Asserting that “No
parent should have to think twice about their child’s safety while on school
grounds,” DeVos directed the Office for Civil Rights to lead the initiative to
examine sexual assault through several avenues, including the following:
- OCR will focus on raising public awareness of the issue of sexual assault in K-12 schools, including making information on the issue available to educators, school leaders, and families.
- OCR will conduct nationwide compliance reviews to examine how sexual assault allegations are handled under Title IX, with special emphasis on sexual incidents involving teachers and school staff. It will then become OCR’s job to work with districts to correct any compliance concerns.
- OCR will conduct Data Quality Reviews (DQRs) of the sexual offenses data including sexual assaults, as submitted by school districts through the Civil Rights Data Collection (CRDC). In doing so, OCR will partner with the National Center for Education Statistics (NCES) and support districts in accurately recording and reporting incidents of sexual assault/sexual offenses through the CRDC.
- For the 2019-2020 data collection, OCR has proposed collecting more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel. If adopted, the inclusion of this data would make the CRDC collection the first universal collection to gather such data systemically for individual schools.
This is the second
nationwide initiative announced by the OCR within the last 13 months. The present announcement comes in the wake of
OCR’s recent resolution of two sexual harassment complaints involving Chicago
Public Schools. However, Secretary DeVos insists the issue is widespread,
stating “We hear too often about innocent children being sexually assaulted by
an adult at school.” Her declaration is
supported by 2015-2016 CRDC reports recording more than 9,700 incidents of
sexual assault, rape or attempted rape in public elementary and secondary
schools. The Agency additionally reports
the problem is “fifteen times greater than a decade ago.” The reporting as
referenced does not break down the number of adults directly involved in such
allegations but relate to a companion announcement by the Office of Elementary
and Secondary Education that it will publish an extensive study on state and
local measures to prevent the “pass the trash” phenomenon in dealing with
adults accused of sexual offenses against students.
by Pamela Leist | Feb 3, 2020 | General, Legislation, School Finance, School Management
Efforts to curb the impact of EdChoice accelerated towards the end of January as legislators in the Senate and House searched for ways to reduce the negative financial impact that the program is anticipated to have on Ohio’s public schools starting next year. Legislators and the governor approved language in last year’s budget bill which was designed to dramatically increase the number of students eligible for the scholarships by more than doubling the number of eligible buildings. Prior to the program expansion, EdChoice was available in 31 school districts and 255 schools. After the expansion, EdChoice eligibility would have extended to at least 426 school districts and 1,227 schools.
Lobbying efforts and contacts from districts to their legislators and to House and Senate committee members to reduce the impact of the changes resulted in the last-minute action to delay implementation of the changes. The 2020-2021 application window for EdChoice would have opened on February 1st, of this year; now, the program application is delayed to April 1st. The House and Senate are expected to review the EdChoice program expansion in the next two months and hopefully will develop amendments to the budget expansion which will better support Ohio’s public school system.
The House initially proposed changes to EdChoice through HB 9. With a deadline of February 1st (the start of the applications of EdChoice scholarships) looming, the Senate passed alternative language late in the evening on January 29th. The Senate’s plan would have reduced the number of school buildings eligible under the traditional EdChoice program, but would also have increased the number of families eligible for the EdChoice expansion program by changing eligibility from 200% to 300% of the federal poverty guidelines for the income-based vouchers.
The bill was sent back to the House, which rejected the changes, and a conference committee convened. The House elected instead to pass House Bill 120, including language delaying the EdChoice application window until April 1st. HB 120 also contained separate provisions that authorize the auditor’s office to conduct performance audits of all state institutions of higher education and also modified requirements for College Credit Plus informational sessions. The bill included an appropriation of $10 million to help fund the EdChoice program. The Senate passed HB 120 on January 31st and the governor signed the bill the same day. The bill is considered an emergency measure and is effective immediately. This move buys the legislature more time to develop a plan that both houses are willing to pass.
February 3rd, 2020 Update: A group of families and private schools filed a lawsuit in the Ohio Supreme Court challenging House Bill 120 changes to EdChoice. The lawsuit alleges that the legislature failed to properly execute an emergency measure and therefore HB 120 should not go into effect for 90 days. The parties also claim that the HB 120 application delay will cause irreparable harm to new EdChoice eligible students who planned to apply for the scholarship. If successful, the state may be forced to accept applications starting February 1st.
We will keep you posted on developments. The education associations have sent out multiple calls of action on the bills and you are encouraged to continue to stay apprised of developments and let your legislators know how the expansion would affect your district.
by Robert McBride | Jan 30, 2020 | General, School Management
The U.S. Department of Education and the Office for Civil Rights at the U.S. Department of Health and Human Services recently released updated guidance regarding the application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA) to a student’s education and health records.
FERPA generally prohibits educational agencies receiving federal funds from disclosing a student’s education records without the prior written consent of the parent or eligible student. On the other hand, HIPAA requires covered entities (health plans, health care clearinghouses, and health care providers) to protect an individual’s health records and other personal health information these entities maintain or transmit.
Are Public Schools Subject to HIPAA’s Privacy Requirements?
In a few very limited instances, an educational institution subject to FERPA may also be subject to the HIPAA privacy requirements. A school may be considered a “health care provider” if it provides health care to students in the normal course of business and the transactions are those for which the U.S. Department of Health and Human Services has adopted a standard form. Even though a school may employ nurses, physicians, or psychologists, schools generally do not bill health care plans for their services. Thus, most schools are not entities covered by HIPAA. Even if a school that is considered to be an entity covered by HIPAA (e.g., when a school hires a health care provider that bills Medicaid for services provided under the IDEA), it will not have to abide by the privacy requirements if the school maintains health information only in “educational records” under FERPA. This is due to HIPAA’s Privacy Rule explicitly excluding FERPA “educational records” from the scope of the act. 45 CFR § 160.103.
Frequently Asked Questions
This new guidance includes a list of new frequently asked questions along with answers to when a student’s health information can be shared without the consent of the parent or eligible student under FERPA and HIPAA. We will discuss some of these new clarifications below.
- When can personal health information or personally identifiable information be shared about a student who presents a danger to themselves or to others?
FERPA allows educational institutions to disclose personally identifiable information to certain appropriate parties if knowledge of this information would be necessary to protect the health or safety of a student or others. This disclosure may take place with or without the consent of the student. 20 U.S.C. § 1232 g(b)(1)(I); 34 CFR §§ 99.31(a)(10) and 99.36. In order to use this exception, the educational institution must look to the totality of the circumstances and determine that there is an articulable and significant threat to the health or safety of the student or others. 34 CFR § 99.36(c). An articulable and significant threat means that if the educational institution can reasonably explain why it believes a student poses a significant threat, such as bodily harm to himself or others, the school may disclose educational records to any person who would be able to assist in protecting a person from that threat. If the educational institution is able to show that it had a rational basis for disclosing the information, the U.S. Department of Education will not substitute its judgment for that of the educational institution making its decision. 34 CFR § 99.36(c). The ability to share this information expires once the danger is no longer present.
The Joint Guidance provided the following example: A student states that he knows where his parents keeps his guns and that he is going to come back and make sure that someone pays for what they have done. What is the district supposed to do? According to the U.S. Department of Education, FERPA permits the district to warn the appropriate parties that the student has made this statement and may be a threat to harm themselves or others. The district may inform the student’s parents, the police, or other parties that would be in a position to help protect the health and safety of the student or others.
- Under FERPA, can an educational institution disclose, without prior written consent, personally identifiable information from a student’s educational or health records to their law enforcement officials?
The short answer is yes, so long as certain conditions are met. If the person is an employee of the educational institution, meets the school’s definition of a “school official” based on the school’s annual FERPA notice, and has a legitimate educational interest in the information/records then the law enforcement official may be considered a school official to whom a student’s personally identifiable information may be disclosed without prior written consent. 20 U.S.C. § 1232g(b)(1)(A); 34 CFR §§ 99.7(a)(3)(iii) and 99.31(a)(1)(i)(A).
What about School Resource Officers and other law enforcement officials who are not employees of the educational institution? School resource officers are not employees of the educational institution but may be considered a “school official” if they:
- Perform an institutional service or function for which the school would otherwise use employees (e.g., ensure school safety or security);
- Are under “direct control” of the educational institution with respect to the maintenance of the educational records. (e.g., done through a memorandum of understanding (MOU) to establish restrictions and protections);
- Are subject to FERPA’s use and re-disclosure requirements in 34 CFR § 99.33, which provides that the personally identifiable information may only be used for the purpose for which the disclosure was made (e.g., school safety and security) and limits re-disclosure of the student’s educational records;
- The SRO meets the school’s definition of a “school official” provided in its annual notification of FERPA rights and has a “legitimate educational interest” in the records.
If the school resource officer or other law enforcement official is not a “school official” acting with a “legitimate educational interest” then the school may not disclose a student’s educational and health records without the prior written consent of the parent unless an exception applies. (i.e. health or safety emergency explained above.)
