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.
by Hollie Reedy | Mar 16, 2020 | COVID-19 (Coronavirus), General
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.
by Jeremy Neff | Mar 12, 2020 | COVID-19 (Coronavirus), General, Special Education, Student Education and Discipline
UPDATE (3/12/20 at 6:20 PM): At 6 PM on March 12 the US Department of Education released new guidance on special education and COVID-19 that is available here.
In the past 48 hours it seems as if the already rapidly developing story of COVID-19, or novel coronavirus, has accelerated even more. With major spectator events being postponed, universities and colleges moving to online instruction, escalating infection rates around the globe, and the declaration of a pandemic by the WHO it seems inevitable that at least some Ohio public school districts will experience extended closures. These closures will raise important questions both in terms of employment and education. Given the unique and unprecedented challenges involved, we encourage you to work with legal counsel in real time to ensure effective and compliant responses.
What flexibility can we expect in meeting federal
requirements for education?
We can look to official guidance issued during the 2009 H1N1 pandemic to get a sense of what we might expect with COVID-19. On December 1, 2009, the US Department of Education (ED) issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, on other Grantee and Program Participants in Responding to Pandemic Influenza H1N1 Virus” (“SEA” refers to State Education Agencies like ODE, and “LEA” refers to Local Education Agencies like individual school districts). The guidance document discussed in generalities the willingness of the US Department of Education to offer flexibility regarding the requirements of the Elementary and Secondary Education Act (now referred to as ESSA). It is reasonable to assume that flexibility will likewise be offered as COVID-19 has begun to force school closures. We will continue to update clients as specific guidance is issued.
Specifically regarding students on IEPs and 504 plans,
what services must we provide during a closure?
We are receiving many calls related to the delivery of
instruction during possible closures, and specifically regarding the delivery
of instruction to students with IEPs and 504 Plans. Here is what ED said on
this topic in 2009 regarding H1N1:
Must an LEA continue to provide FAPE to students with
disabilities during a school closure caused by an H1N1
outbreak?
The IDEA, Section 504, and the ADA do not specifically
address a situation in which elementary and secondary schools would be closed
for an extended period of time because of exceptional circumstances; however,
LEAs must be sure not to discriminate on the basis of disability when providing
educational services.
If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational
services, and does not provide any educational services to the general student
population, then an LEA would not be required to provide services to students
with disabilities during that same period of time. Once school resumes,
however, a subsequent individualized determination is required to decide
whether a student with a disability requires compensatory education to make up
for any skills that may have been lost because of the school closure or because
the student did not receive an educational benefit.
If an LEA continues to provide educational opportunities
to the general student population, then it must ensure that students with
disabilities also have equal access to the same opportunities and to the
provision of FAPE, where appropriate. SEAs and LEAs must ensure that, to the
greatest extent possible, each student with a disability receives the special
education and related services identified in the student’s individualized
education program (IEP) developed under IDEA, or a plan developed under Section
504.
There is no guarantee that ED would issue the same guidance
today for COVID-19, but given the parallels between the concerns in 2009 and
those today, this 2009 guidance is a reasonable starting point for planning a
compliant response to a potential school closure for COVID-19.
What are the special education implications of providing
online instruction during a closure?
It is notable that the approach that creates the most risk
for a school district, per the 2009 ED guidance, is to offer online instruction
during a closure. The reason this can become a problem is that students with
disabilities will need to be offered accessible instruction that meets their
unique needs. It is difficult to imagine how a district might provide “regular
prompting,” a common accommodation, to a child who is sitting alone at a
computer. And what of the child who does not have a computer or internet
access? Per the 2009 ED guidance it would be more legally compliant to not
offer any instruction at all than to offer online instruction without an
adequate plan for students with special needs.
This does not mean that online instruction should be ruled out. It just means that if online instruction is used there will need to be a plan for how this will serve students with disabilities. You should also consider the possibility of not immediately implementing online instruction. Given the mild winter and the fact that most schools significantly exceed minimum hours of instruction on their regular calendars, it is likely that a few days of closure (without online instruction) will not violate state minimum hours law. Even if a closure is longer lasting, pausing before implementing online instruction could provide important breathing room for student services to plan for serving students with disabilities.
Will we be required to provide compensatory education to
students on IEPs and 504 plans following a closure?
The 2009 ED guidance points to the fact that a discussion of
whether compensatory education may be required should follow any period of
closure regardless of what services are provided. Unless a child is already
assigned to home instruction at the time of the closure, any set of services
during a closure will in some ways not be in compliance with the child’s IEP.
While proactive amendments to account for anticipated closures could minimize
the risks, it would be ambitious for most districts to secure consent for
amendments for all IEPs. A more realistic approach could involve identifying
students who are most at risk of significant regression during a closure, and
working with parents to develop a plan to minimize that regression. Not only is
this educationally sound, it would be an important part of any legal defense
related to IDEA or Section 504 complaints. Once school resumes after a closure
you can revisit whether other compensatory services are appropriate.
Please continue to follow the Ennis Britton blog for updates
on COVID-19, and do not hesitate to call any of our attorneys with questions or
concerns.
by Pamela Leist | Mar 11, 2020 | COVID-19 (Coronavirus), General
UPDATED APRIL 1, 2020
On March 11, 2020, the World Health Organization officially declared that COVID-19, a novel coronavirus, has become a pandemic. We anticipate that this virus will pose many challenges to school districts and communities in the coming weeks and months. It is important for public school district boards of education to understand state laws regarding board meetings so that you have a plan in place to effectively maintain operations during this and future pandemics.
How frequently is a board of education required to meet?
Board of education must meet at least once every two months. Regular meetings are scheduled at the organizational meeting in January. A board of education may convene a special meeting by providing proper notice to the board members and the public. Board members must be notified of the special meeting at least two days prior to the event. Additionally, the board must announce special meetings at least 24 hours ahead of time to the public. With this said, the board of education may cancel meetings in its discretion. Notice of meeting cancellation should be provided as soon as possible.
May the Board of Education conduct a remote meeting online or by telephone?
Ohio’s Open Meetings Act, R.C. §121.22, requires a board of education to conduct meetings that are open to the public. Prior to the COVID-19 pandemic, a member of a public body was required to attend meetings in person even during a health emergency. The Ohio attorney general declared as much in an opinion published in 2009, and concluded that a township could not meet remotely during a pandemic or other public health emergency, even to provide needed response services because this would interfere with the public’s ability to attend. Click here to access 2009 OAG 034. Rather, the Attorney General recognized that a public entity was not permitted to conduct a public meeting remotely unless the General Assembly had authorized it to do so through legislative action.
However, as a sign of the truly unique and unprecedented times we are living in, on March 25th, 2020 the Ohio General Assembly passed an emergency measure through House Bill 197 which temporarily authorizes boards of education and other local government agencies to hold public meetings by teleconference or video conference while the health threat continues.
This law permits members of a school board to participate from a remote location while the emergency is ongoing. Members will be considered present regardless of whether they attend in person or remotely, and their votes will be counted for the purpose of determining quorum. The law declares that any resolution, rule, or formal action taken shall have the same effect as if it had occurred during a typical in-person meeting.
The law also permits a board to fulfill the public access requirement for open meetings by providing members of the public with remote access to the meeting. Examples of acceptable remote access technologies include live-streaming by means of the internet, local radio, television, cable, or public access channels, call in information for a teleconference, or by means of similar electronic technology. The public must be able to observe and hear all discussions and deliberations regardless of whether the board member participates.
If the meetings are streamed over some type of technology, boards must publish information about how the public can access the meetings at least twenty-four hours in advance, unless the board convenes an emergency meeting. Notice should be sent to all members of the media and public who have requested to be notified, and by other means that will reasonably provide notice to the public.
School boards must comply with all other Open Meetings requirements such as quorum and executive sessions. The provisions of HB 197 will remain in effect until December 1, 2020 or until the COVID-19 emergency ceases, whichever comes first.
Prior to HB 197’s passage, the Ohio Attorney General issued a letter on March 13, 2020 shortly following official orders issued by both the Ohio Governor Mike DeWine and the Ohio Department of Health Director Dr. Amy Acton which prohibited mass gatherings and also urged individuals to maintain adequate personal space. The Attorney General emphasized that public business must be allowed to continue in times such as these, but also clearly stated that this opportunity would apply in very narrow circumstances and only while the orders remained in effect. The AG cautions public bodies that they may want to refrain from making decisions that are unrelated to the current health emergency, including examples such as passing a new tax or enacting a new regulatory scheme.
Districts should pay careful attention to the provisions of HB 197 as well as comments included in the Attorney General’s letter, and should contact legal counsel for advice before conducting remote meetings. Click here to access the letter, and click here to review HB 197.
What happens if a majority of board members are unable or unwilling to attend meetings due to personal choice, a quarantine or government order?
A board of education must have a quorum in order to properly conduct school business. A majority of all members of the board constitutes a quorum, and a majority of the quorum is typically sufficient to approve a motion or resolution. Some actions require a special voting majority (a majority of the full board or more) under state law. These include adoption of a resolution to purchase or sell real or personal property, employ a staff member, appoint a public official, pay a debt or claim, and adopt a textbook.
Without having the required voting majorities, the actions may not legally be accomplished. As a result, a board of education may need to consider postponing certain actions and should attempt to reschedule meetings if an insufficient number of members are able to attend. In accordance with HB 197, boards may be able to host remote meetings under certain narrow circumstances during a health emergency. Boards of education may be able to delegate certain decisions to a superintendent, and also may be able to take certain actions retroactively in an emergency.
Will the General Assembly make further changes in the law to respond to the COVID-19 pandemic?
It is likely that local, state and federal governments will work diligently with school districts and communities to address the many challenges that COVID-19 has caused and is likely to cause in the future. Therefore, it is possible that legislative measures will be taken that will allow public bodies to operate differently than before in response to the public health needs of the community. It is not yet certain how serious the pandemic will become, how long it will last, and what short and long-term impacts it will have on school operations. In the meantime, boards should regularly consult trusted sources and with legal counsel to explore options and weigh risks during this novel pandemic situation.
Ennis Britton will update this information if it changes over time.
