COVID-19 Update: Frequently Asked Questions

by | 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:

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

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

COVID-19 Update: School Board Meetings During a Pandemic

by | 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.