The coronavirus (“COVID-19”) pandemic has reshaped public education in the State Ohio. As districts brace for the start the 2020-2021 school year, there are a number of issues that must be addressed by boards of education as they prepare for the many challenges that lie ahead. This blog post will highlight the most urgent matters for your district to consider.
On July 6, 2020, the Ohio Department of Education (“ODE”) and the Ohio Department Health (“ODH”) jointly issued “COVID-19 Health and Prevention Guidance for Ohio K-12 Schools” (“Guidance”). The Guidance establishes guidelines for the opening of schools, including the requirement that boards of education must adopt a face covering (“mask”) policy. This requirement is not found in the Ohio Revised Code, Ohio Administrative Code, or in any Executive Order thus far issued by the Governor or the ODH.
The Guidance describes a mask as cloth/fabric which covers an individual’s nose, mouth, and chin in order to provide a barrier that prevents respiratory droplets and smaller aerosolized particles from spreading from one person to another.
The Guidance provides that school staff and volunteers must wear masks, unless it is unsafe to do so, or where doing so would significantly interfere with the learning process. The Guidance then provides the exceptions, which, if applicable, would permit masks not to be worn. Those exceptions include, but are not limited to, the following:
- If masks are not advisable for health reasons;
- If staff members are working alone in an assigned work area; and
- If there is a functional (practical) reason for a staff member or volunteer to not to wear a mask in the workplace.
The Guidance states that it is “strongly recommended” that students in 3rd grade and higher wear a face mask, unless they are unable to do so for a health or developmental reason. If your board intends to require that students wear masks, it should consider how to procure and provide masks to students who forget theirs or are unable to provide one for themselves. Further, your board should consider what discipline students and staff may be subject to if they violate the mask policy.
The Guidance also states that clear plastic “face shields” which wrap around the face and extend below the chin “can be considered as an alternative where cloth face coverings would hinder the learning process.” However, the Center for Disease Control has issued its own guidance, stating that it “does not recommend use of face shields for normal everyday activities or as a substitute for cloth face coverings.” Boards must weigh these competing approaches carefully, and determine what is best for their staff, students and community.
Further, Governor DeWine has created the Ohio Public Health Advisory System (“System”) which is a color-coded county-by-county system designed to supplement existing statewide Orders. The System consists of four (4) alert levels that provide Ohioans with guidance as to the severity of COVID-19 spread in the counties in which they live. People in counties designated as “Red Alert Level 3” or “Purple Alert Level 4” are required to wear a mask:
- In any indoor location that is not a residence;
- When outdoors and unable to consistently maintain a distance of six feet or more from individuals who are not members of their household; and
- While waiting for, riding, driving, or operating public transportation, a taxi, a private car service, or a ride-sharing vehicle.
The System’s mask requirement does not apply to children under the age of 10 or any other minor who cannot safely wear a mask.
Finally, boards of education should also refer to ordinances passed by local governments in response to the COVID-19, some of which may include requirements concerning the wearing of masks by citizens. If you need further clarity on the rules, regulations, and guidance concerning the wearing of masks, contact the board’s legal counsel today.
Releases/Waivers of Liability
At present, there are two Bills that have been introduced in Ohio that are intended to provide some enhanced immunity to schools related to lawsuits borne out of infections or injuries that are the result of COVID-19 transmission. The Senate version is SB 308 and the House version is HB 606. The relevant provision in HB 606 provides in part: “(A) No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV2, or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.”
Neither the House, nor the Senate is due to return until the fall to vote on the Bills. Therefore, the likelihood of either Bill passing and being enacted into law prior to the start of the 2020-2021 school year is unlikely. While schools are protected from liability for a variety of claims under sovereign immunity laws set forth in Chapter 2744 of the Ohio Revised Code, courts in Ohio have yet to rule on a claim regarding sovereign immunity’s application to cases of infectious diseases like COVID-19. Consequently, it is unclear as to whether the protections set forth in Chapter 2744 would apply to suits brought by a student who contracted COVID-19 at school.
Therefore, a number of superintendents have asked if they can require parents and students to sign a document (“Waiver and Release Agreement”) that releases the board of education and employees from liability if the student or family members become infected with COVID-19. A Waiver and Release Agreement can be provided that specifies that parents and students waive their rights to file suit against a board of education or its employees if a student or parent becomes infected with COVID-19 because of the student’s attendance in school. However, there is no legal right to deny a student’s attendance at school if they or their parents refuse to sign the Waiver and Release Agreement. Therefore, districts face the possibility of only a portion of the students and parents signing the release, which still leaves the district potentially vulnerable to a lawsuit. Additionally, even if students sign the release, if they are under 18 years of age, they would maintain the right to sue the district for injuries for two years after reaching the age of 18.
If you wish to discuss this matter further, or wish to receive a draft of a Waiver and Release Agreement regarding contracting COVID-19 at school, please contact one of our attorneys.
Under H.B. 164, “qualifying” school districts may adopt and implement Remote Learning Plans (“Plans”) for the 2020-2021 school year only. “Remote learning” is defined locally in each Board’s adopted Plan, with each Plan outlining six mandatory components. Plan Guidance from the Ohio Department of Education is available here. Additionally, Pepple & Waggoner has developed a Remote Learning Plan template, which provides language for school districts to consider including in their Plans.
Implemented Remote Learning Plans ensure compliance with several statutes. School districts implementing Plans are considered to have met the minimum hour requirements for the school year and are considered to have met requirements to receive certain state funding.
Prior to adopting a Remote Learning Plan, your school district should ensure it is qualified to adopt a Plan due to H.B. 164’s peculiar language regarding eligibility. Under H.B. 164, a school district is not eligible if, as of June 19, 2020, it was “approved” to use a blended learning model for the 2020-2021 school year. Many school districts either had been preparing and/or had adopted blended learning policies as H.B. 164 was being considered, leading to confusion as to what it means to be “approved” and whether this affects their ability to adopt Remote Learning Plans. If you are unsure whether your district is eligible to adopt a Remote Learning Plan or for assistance in developing a Plan, you should contact Board counsel.
Finally, in addition to adopting a Remote Learning Plan, a school district also may also adopt a “Blizzard Bag Plan” pursuant to R.C. 3313.482. Under law that predates the COVID-19 Pandemic, boards of education are authorized to adopt Blizzard Bag Plans to make up to the equivalent of three days when it necessary to close schools. While Blizzard Bag Plans and Remote Learning Plans could overlap, Blizzard Bag Plans also can serve purposes not contemplated in a Remote Learning Plan. Adopting both may provide a belt and suspender approach for ensuring hours are met this school year. Note that a Blizzard Bag plan must include the written consent of the teachers’ union. The deadline for boards of education to adopt a Blizzard Bag Plan is July 31st.
Districts considering modifying their school calendars for the 2020-2021 school year should remain mindful of their existing board policies and other legal obligations regarding the calendar. Under R.C. 3313.48(B), the board must hold a public hearing not later than at least 30 days prior to adopting a resolution approving the calendar. Certain topics must be addressed at that hearing, including the total number of hours in the school year, the length of the school day, and the beginning and end dates of instruction. Additionally, SERB has concluded the school calendar is a mandatory subject of bargaining, so districts should review their collective bargaining agreements for any additional requirements relating to the calendar.
Governor DeWine and the Ohio Department of Health (“ODH”) have issued numerous Executive Orders applicable to school districts, many of which are still in effect. All of these orders can be found on the Ohio Department of Health’s Coronavirus (COVID-19) website under “Public Health Orders.”
The ODE is providing districts with flexibility regarding the deadline to revise district board policies to comply with OTES 2.0. To give districts the necessary time to consult with their teachers on how best to update their policies for the upcoming school year, the date for district board policy adoption continues to be September 1, 2020, regardless of a district’s timeframe for implementation of OTES 2.0. ODE is also giving districts the discretion to determine whether they are ready to implement OTES 2.0 for the 2020-2021 school year. If a district determines that it is not ready to implement OTES 2.0 in the 2020-2021 school year, it is permitted to delay implementation for one year until July 1, 2021. Districts should also make the decision regarding implementation with input from the teachers’ union.
If a district implements OTES 2.0 in 2020-2021 and the district completed the 2019-2020 evaluations and submitted them through eTPES or OhioES, those educators will continue their evaluation cycles as anticipated. If the district did not complete evaluations in 2019-2020 per the COVID-19 exemption set forth in H.B. 197, those educators will maintain their evaluation cycle status from the beginning of the 2019-2020 school year at the start of the 2020-2021 year. The ODE has posted a helpful chart for determining evaluation obligations.
Districts should note that individuals possessing a current OTES 1.0 evaluator credential cannot evaluate educators if the district adopts and implements OTES 2.0 for the 2020-2021 school year. Evaluators must be credentialed under the OTES system that is being implemented for the 2020-2021 school year.