UPDATED: APRIL 1, 2020 @ 7:30 AM
State and local jurisdictions throughout the United States are bracing to respond to the threat of a coronavirus (“COVID-19”) outbreak. Ohio school districts are strongly encouraged to work in consultation with their local health department when determining the threat posed by COVID-19 to their community. In the interim, the following are guidelines and recommendations relating to legal issues posed by a potential COVID-19 outbreak within the district, including general preparedness, employee issues, and continuity of education.
- School is still in session even though school buildings are closed to students – On March 12, 2020, Governor DeWine announced that schools were closed to students, but that schools should “work to provide education through alternative means”. In that same announcement, Governor DeWine further stated that, “staff members should continue to report to school as directed by administrators.” On March 14, 2020, Department of Health Director Dr. Amy Acton ordered the closure of school buildings to students effective March 17, 2020 at 12:01 a.m. through April 3, 2020 at 11:59 p.m. Director Acton extended that closure with her Amended Order of March 30, 2020 through May 1, 2020 at 11:59 p.m. Director Acton clarified in each Order that such closure “does not include administrators, teachers, staff, vendors, or contractors of a school,” and that the “administration of each school shall determine the appropriate level of access to the school during the closure.” Finally, on March 17, 2020, Governor DeWine stated during his press conference that education provided on-line to students would count toward the hours necessary for students to graduate (which Amended Sub. H.B. 197, signed into law on March 27, 2020, confirmed provided that you adopt or amend your distance learning plan), and emphasized there were no plans for schooling to be pushed into the summer, or next school year. As such, to the extent your district’s teachers, administrators and other staff members are continuing to provide an education to students and meet the educational requirements toward student hours for purposes of graduation, then it may be argued that “school” is not closed due to a public calamity or epidemic.
- Consider a Board resolution related to COVID-19 – Today, School Board members, Superintendents and Treasurers find themselves in uncharted waters. The condition of our Communities, our State and our Country is highly fluid with changes happening practically by the hour. Because of this fluid and changing landscape you are working hard to navigate, Pepple & Waggoner, Ltd. recommends that Boards of Education consider passing a resolution conferring emergency powers on the Superintendent and Treasurer. This will allow your Superintendent and Treasurer to respond to changing conditions and District needs rapidly and efficiently. We recommend that the authority be conferred until schools re-open and operations return to normal conditions. If you are interested in considering a COVID-19 Board Resolution, please contact us.
- Review and update school safety plan – Each school district in Ohio is required to submit a safety plan to the Ohio Department of Education which outlines the procedures for emergency situations. These plans should include procedures for handling disease outbreaks as well as plans to continue operations during a long-term closure. The plan should also contain procedures for determining when to close a school and how to disinfect and decontaminate facilities if necessary.
- Establish a point of contact with the local public health agency – The Ohio Department of Health follows the Centers for Disease Control and Prevention (“CDC”) interim guidelines to prevent the introduction and spread of COVID-19. Districts should collaborate, share information, and review plans with local health officials to ensure protection of the school community. It is important that districts alert local health officials about large increases in student and staff absenteeism and report the symptoms. The local health officials may issue a formal dismissal or recommendation to close the school for a period of time, typically up to 14 days, so it is vital to maintain a close relationship with the agency.
- How to find a local health official: https://odh.ohio.gov/wps/portal/gov/odh/find-local-health-districts
- Review current board policies that are in place – Districts should review current board policies that relate to the health and safety of students and staff in school buildings, including, but not limited to, your communicable disease policy. Districts may even consider offering flexible leave and attendance policies for the duration of the epidemic to encourage and allow those students and staff members to stay home if they are sick or are experiencing symptoms associated with COVID-19. A district may also consider discouraging the use of perfect attendance awards and incentives, if possible.
- Identified case of COVID-19 in the school district community – School districts must maintain the confidentiality of the student or staff member as required by the Americans with Disabilities Act and the Family Education Rights and Privacy Act. If a student or staff member attended school prior to being confirmed as a COVID-19 case, school districts should work with the local health officials to communicate possible exposure to the community while maintaining the infected individual’s right to confidentiality beyond necessary communications with designated school and health officials. Your communications to the school community about an identified case of COVID-19 should then align with the communication plan in the school’s emergency operations plan for more comprehensive information regarding your obligation under FERPA, please click here: https://www.pepple-waggoner.com/2020/03/13/ferpa-and-the-health-or-safety-emergency-exception/
- Reporting communicable diseases to health department – If a district is concerned that a student or employee may have symptoms or exposure to COVID-19, the first step is to talk with local health officials. Districts are not expected to screen students or staff to identify cases of COVID-19. Further, O.A.C 3701-3-02 states that diseases which are dangerous to the public health shall be reported by health care providers and laboratories to the board of health. School districts do not fall within the category of health care providers. However, it is recommended that districts alert their local health officials about potential COVID-19 exposure as well as large increases in student and staff absenteeism, especially if the absences appear due to respiratory illness. The local health department will make the report when there are cases of COVID-19 in the community. If a child or staff member has been identified with COVID-19, school administrators should seek guidance from local health officials to determine what the next steps are for the school community. Your communications to the school community about an identified case of COVID-19 should then align with the communication plan in the school’s emergency operations plan.
- Board Meetings – On March 27, 2020, Governor DeWine signed into law amended H.B. 197 to address the many exigencies related to the spread of COVID-19. Among other items, H.B. 197 allows public bodies, including boards of education, to hold, attend, and take public action in public meetings by teleconference, video conference, or other similar means. H.B. 197 thus effectively removed any doubt whether electronic meetings are permissible under Ohio law, during the time periods set forth below. Although boards may now hold, attend, and take public action in public meetings electronically, they must still meet certain requirements outlined in H.B. 197 and the Open Meetings Act. To ensure that boards comply with legal requirements, Pepple & Waggoner has prepared guidelines for conducting public meetings electronically which can be accessed here https://www.pepple-waggoner.com/2020/03/27/conducting-public-meetings-electronically/
- Compensation of staff for when school is closed – Under R.C. 3319.08 and 3319.081, districts are required to continue paying both teaching and nonteaching employees when the schools in which they are employed are closed to such employees due to an epidemic or other public calamity. While under Ohio law such employees can be required to report to work without receiving additional pay, Districts should review their current collective bargaining agreement (“CBA”) and the provisions related to the compensation of staff in the event of calamity days, as they may require payment of employees in excess of their regular wage if they are ordered to return to work. Districts might consider coordinating with the union in advance to create a memorandum of understanding (“MOU”) as it relates to employee absences and compensation during school closings.
- Continuity of operations as it relates to staff – In their safety plans, districts should address how they will continue essential functions during a disease outbreak. During school dismissals, schools may stay open for staff members for the purpose of providing an online curriculum for students, while students stay home (unless ordered otherwise by the local department of health).
- Working from home – School districts may receive requests from employees who are on FMLA leave to work from home during the school closure. When determining whether to grant the request, school districts will need to consider whether the employee’s job duties can be performed from home, whether the school district is permitting other employees with the same job functions work from home, and whether working from home is consistent with the medical documentation the employee has provided to the school district. If the school district is permitting other employees with the same job duties to work from home, the school district may need to permit similarly situated employees on FMLA leave to do the same to prevent claims of retaliation. However, it is necessary for the school district to comply with the employee’s medical certification. If the employee’s request to work from home is inconsistent with the employee’s medical certification, then the school district should request that the employee provide a recertification. Finally, under the Families First Coronavirus Response Act (“Families First Act”) signed into law by President Trump on March 18, 2020, employees impacted by the COVID-19 crisis may be entitled to expanded FMLA rights, as discussed in our blog post which can be accessed here: https://www.pepple-waggoner.com/2020/03/20/expanded-fmla-and-paid-leave-under-the-families-first-coronavirus-response-act/
- Sick leave – Districts may encounter situations with employees who are fearful of contracting COVID-19 because they are within the categories of people most susceptible to the virus, as indicated by the Centers for Disease Control. However, an employee’s fear, in and of itself, is not a basis for the application of sick leave. Districts have inherent authority to take reasonable steps to ensure that sick leave is used only for authorized purposes. Therefore, a district should follow the sick leave policy in their CBA or Board Policy, which may allow them to require a physician’s statement to ensure the proper use of sick leave. Additionally, if the employee presents a note from their physician indicating they cannot report to work, that typically is sufficient to permit the employee to utilize sick leave. The district should apply the policy equally and uniformly among all employees during the COVID-19 epidemic. Finally, employees impacted by the COVID-19 crisis may be entitled to expanded paid sick leave rights under the Families First Act, as discussed in our blog post which can be accessed here: https://www.pepple-waggoner.com/2020/03/20/expanded-fmla-and-paid-leave-under-the-families-first-coronavirus-response-act
- FMLA issues during school closure – As of now, Governor DeWine and Director Acton have made clear that employees are still expected to continue to report to work as directed by administration during the ordered school closure for COVID-19. However, if the school district decides to temporarily close for employees for one or more weeks as well, under FMLA, the days the employer is closed do not count against an employee’s FMLA leave entitlement. Under both 29 CFR 825.200(h) and 29 CFR 825.601(a), if an employer’s business activity has temporarily ceased and the employees are not required to report to work, that period of time does not count against the employee’s FMLA leave entitlement. Therefore, when a school closes for employees too, the time it is closed will not count against the employee’s FMLA leave.
CONTINUITY OF EDUCATION
- Maintain required instructional time and ensure continuity of education – While schools are closed to students through May 1, 2020, districts have been strongly encouraged by Governor DeWine to ensure education and instruction continues. As discussed below, a school district is encouraged to continue instruction through online learning or through the use of blizzard bags.
- Online learning – This option is available to districts that have the capability to implement online learning instruction within their district. ODE has indicated that online learning is available to both districts that adopted a plan prior to the first day of August of the school year and also those districts that may not have included use of online learning as part of their plan to make up hours. Additionally, Section 15 of H.B. 197, permits school boards to exceed the statutory maximum of three days’ worth of hours so long as the make-up hours are to provide for making up any number of hours schools were closed in the 2019-2020 school year in compliance with” the Order. Section 15 further allows districts to either adopt new distance learning plans if they did not already have such a plan in place, or amend their existing plans to account for COVID-19-related school building closures:
- If the board already has adopted a distance learning plan under R.C. 3313.482, the board may amend that plan “to provide for making up any number of hours schools were closed in the 2019-2020 school year in compliance with” the school closure order.
- If the board has not adopted a distance learning plan under R.C. 3313.482, the board may adopt such a plan “to provide for making up any number of hours schools were closed in the 2019-2020 school year in compliance with” the school closure order.
- Use of blizzard bags – Districts may use blizzard bags beyond the normal three days authorized under Ohio law during the COVID-19 closure. Blizzard bags consist of paper copies of the lessons that are posted online. This would provide an option for those districts that do not have the capability to use online learning.
- No access to online learning and no use of blizzard bags – Districts are encouraged to continue some form of reading and writing practices or enrichment activities throughout the extended school closure in order to continue learning. Under R.C. 3313.482, if a student does not have access to a computer at the student’s residence and the school district’s plan for completion of make-up days does not include the use of blizzard bags, the student shall be permitted to work on the posted lessons at school once the student’s school reopens. ODE has also issued guidance that schools may establish “pick up and drop off” points to provide students access to instructional materials. However, districts must ensure that this will not create conditions that result in students congregating together at one time.
- Extending the school year – ODE has stated that due to the effort to provide educational services during the closure period, there should be limited impact on minimum instructional hours requirements. However, if a district’s schools are closed such that it falls below the minimum number of hours required by R.C. 3313.48, it may make up hours by extending its scheduled year and making up the hours at a later date in the year. ODE has indicated that further guidance will be forthcoming on this issue.
- New school schedule – As noted above, ODE does not anticipate an impact on the minimum hours requirements. However, if COVID-19 causes a district to fall below the minimum hours requirement and more time needs to be scheduled, the new scheduled time is considered a calendar change which mandates a new public hearing, board resolution and written agreement with other schools. Hours missed above the minimum do not have to be made up. ODE has indicated that further guidance will be forthcoming on this issue.
- Special education – Click here for extended coverage of special education issues: https://www.pepple-waggoner.com/2020/03/23/ocr-issues-supplemental-fact-sheet-regarding-students-with-disabilities/
- Meal services during closure – While it is not mandatory that meals be provided during a school closure, it is encouraged to ensure the needs of low-income children are met during this extended school closure. With the approval of the ODE waiver for meal service at school sites during COVID-19 school closures, districts may provide meals during the unanticipated school closure at both school and non-school sites and in a non-congregate setting. A non-congregate setting is somewhere other than the physical location at which food is provided to children and at which children consume meals in a supervised setting. This enables approved sponsors to allow meals to be taken away from the site and consumed elsewhere. ODE is currently seeking an additional waiver permitting the delivery of meals to students. If approved, ODE will provide technical assistance to sponsors on processes and procedures for planning and preparing meals/snacks and documenting food inventory and usage. Under the current waiver, meals must meet the regular menu planning requirements of the Summer Food Service Program (SFSP) or Seamless Summer Option (SSO). The current waiver applies to schools participating in the National School Lunch Program (NSLP) and/or School Breakfast Program (SBP) where school food authorities (SFAs) serve meals through SFSP and SSO. The waiver request was approved through June 30, 2020, or upon the expiration of the federally declared public health emergency, whichever is earlier. The maximum number of meals that may be offered remains the same under SFSP or SSO: up to two meals, or one meal and one snack, per child, per day, in any combination except lunch and supper. It is important to note that separate meal counts and records must be maintained for meals served under the COVID-19 waiver. The total meals must be reported to the State agency for submission to the Food and Nutrition Service in order to receive reimbursement.
- Some school districts may wish to provide meals to all students instead of only those eligible for free or reduced meals. For dismissed schools with 50 percent or more of their enrolled students certified eligible for free or reduced price meals, SFAs may develop meal distribution methods in which meals are available to all families with children enrolled in that school, with a focus on serving low income children. For dismissed schools with less than 50 percent free or reduced price enrollment, meal distribution methods must more directly target the households of enrolled children who are eligible for free or reduced price meals.
- Some communities may also have concerns about ensuring meals are delivered to the elderly who have self-quarantined. Pursuant to federal regulations, SFAs may use facilities, equipment, and personnel to support a nonprofit nutrition program for the elderly.
- ODE has also indicated that it is in the process of requesting approval from the U.S. Department of Agriculture to deliver meals to locations other than a school building, but this approval has not yet been granted. As a reminder, as stated above in the “Compensation of staff” section of this post, under Ohio law, districts can require nonteaching employees to report to work to prepare and deliver meals, but calamity day provisions within the current CBA should be considered to determine if extra wages are required.
- Supplemental Contracts – Governor DeWine’s extended school closure is likely to impact the operation of many extracurricular activities that were scheduled to occur during that time. In situations where the subject activity no longer is being offered (e.g., an activity or season has been suspended or cancelled), there is authority for discontinuing the supplemental contract since there is no further work available to be performed. However, the employee should be compensated for work that was performed up to that point. Because supplemental contracts and their associated duties are fact-specific, school districts should contact board counsel prior to taking any action on supplemental contracts impacted by the school closure.