As school district leaders continue to work through the unprecedented and ever-evolving impact of the Covid-19 pandemic, Hodgson Russ is dedicated to providing you with the most up-to-date legal analysis and practical guidance to assist you in making critical decisions for your school community. We will continue to keep you apprised of legal developments relating to Covid-19 and its impact on school district operations. Below, in question/answer format, are some of the issues that have arisen over the past few days, with analysis that we hope will be useful to you. We will continue to add to this document and share information as it becomes available.
What legal authority is the Governor operating under?
On March 7, 2020 Governor Cuomo signed Executive Order Number 202, declaring a State of Emergency in New York. This power provides the Governor the ability to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, of any agency if compliance would prevent, hinder, or delay action necessary to cope with this emergency.
When the school closes, what leave days must be used first?
Pursuant to Executive Order Number 202, districts must first exhaust any available time including snow days and vacation days when closing.
Does the current Executive Order contain any other requirements applicable to schools?
Yes, arrangements must be made to ensure meals to students in need, critical education supports, and distance learning options. In addition, Executive Order 202.4, issued 3/16/2020, requires that school districts develop a plan for alternative instructional options, distribution and availability of meals, and child care, with an emphasis on serving children of parents in the health care profession or first responders who are critical to the response effort. Districts must submit such a plan to SED for review, although no deadline date for submission is established in the Executive Order except for certain school districts in the greater New York City area. The expectation is that SED will provide further guidance on the scope and elements of such plans, including with regard to the child care component.
Must the school board still meet?
School boards must continue their governance and over-sight roles during this time. If your upcoming board meeting agenda does not contain critical items, the board may consider cancelling the meeting. However, at some point, the board will have to determine how future meetings will be conducted during this State of Emergency. Recent guidance shared by the New York State School Boards included discussions with the Committee on Open Government. The Committee on Open Government has opined any alleged violation of the Open Meetings Law will take into consideration the board’s desire to protect public health while continuing to perform necessary government functions. Limiting public in-person access to an open meeting may be necessary given the current public health threat. However, boards should otherwise comply with the provisions of the Open Meetings Law regarding making meetings public through technology and also limit discussions and actions taken to those matters necessary.
How quickly does the District need to respond to a request for information under the Freedom of Information Law (FOIL) during the coronavirus outbreak?
School districts generally must acknowledge receipt of a request for information within five business and grant or deny access to the requested information within 20 business days. However, when a district knows that it will not be able to grant or deny access within 20 days, a district can extend the time for a response for a reasonable period of time in consideration of the surrounding the circumstances—which would include consideration of the unprecedented obstacles facing local school districts over the next several weeks.
Thus, we recommend stating that, “Given schools are not in session and with the Covid-19 pandemic, we anticipate responding to this request by _______. This timetable may change given the current state of affairs. We will keep you apprised of any necessary changes.”
Should schools move forward with sending the required notices for the upcoming budget vote?
In short, yes. This year, the annual budget vote and school board election is scheduled to occur on May 19, 2020. As a result, school districts must publish the first of four legal notices of the vote between March 31 and April 4. Neither the New York State Education Department nor the Governor has released any information regarding whether the timelines and strict requirements for this vote will be lifted given the ongoing state of emergency and school closures. Therefore, we recommend that schools continue to prepare the required notices.
The Governor has, however, made modifications to the Election Law that apply to other types of elections. For example, a recent executive order allows voters to apply for an absentee ballot electronically and extends the deadline to apply. It also reduces the required number of signatures for petitions. Although these changes do not apply to the upcoming budget vote, they do shed light on possible modifications that may be made in the upcoming weeks.
How are school districts supposed to administer upcoming state assessments? Will waivers been granted?
The USDOE has stated that it generally does not grant statewide waivers for assessments. Prior to the closure of all schools in New York State, NYSED indicated that it would apply for waivers for schools impacted by COVID-19. Given that all schools have now been impacted, NYSED is likely to issue updated guidance.
In addition, NYSED has extended the make-up windows for the administration of the Grades 3-8 English Language Arts and Mathematics Tests as well as the scoring windows. While some of these make-up windows fall outside the April 20th closure date, not all do. If schools reopen during the testing windows, the State assessments should be administered to all students.
What resources are available to ensure that students receive necessary mental health resources?
In guidance issued on March 9, 2020, the NYDOH and NYSED identified some of the following resources to help schools meet the mental health needs of students:
- School Mental Health and Training Center
https://mhanys.org/programs/schools/
- Coping with Stress During Infectious Disease Outbreaks
https://store.samhsa.gov/system/files/sma14-4885.pdf
- How Do You Talk to Children About Coronavirus? Stay Honest and Simple to Avoid Anxiety
https://www.usatoday.com/story/news/health/2020/02/28/talking-children-coronavirus-keepsimple-avoid-stress/4906147002/
Should the District enter into a Memorandum of Agreement (MOA) with the teacher’s union for the delivery of remote instruction?
It is not necessary, nor perhaps desirable, to enter into an MOA for this reason if the District has plan in place for the remote delivery of instruction and the union has not objected to the terms of that plan.
With the rapid change of events, an MOA may hamper your ability to respond to the evolving needs of your educational program. However, if the union insists on a MOA, or if the district believes (based on local circumstances) a MOA is desirable, we strongly recommend the standard NYSUT MOA not be adopted. Any agreed upon terms should provide the district with sufficient flexibility to respond to changing circumstances.
Are teachers or other staff entitled to work from home during a state of emergency associated with the Coronavirus?
Possibly. While telework is not generally required by law, the CDC and NYS Department of Health are encouraging employers to be flexible and consider telework arrangements to the extent possible as an outbreak control mechanism.
In addition, employees who have underlying medical conditions (i.e., respiratory conditions, immune system disorders, etc.) that make them more susceptible to coronavirus infection, or increase the likelihood of complications from such an infection, may request significant social distancing or isolation at school or telework. These requests should be processed as requests for reasonable accommodation, and the District should engage in the interactive process. Except where the existence of a disability and need for accommodation are obvious, the District can likely request medical documentation from the employee to support the accommodation request.
How should the District handle employees who report fear or anxiety related to acquiring COVID-19 at school?
As noted above, if the employee’s fear/anxiety is related to a medical condition that renders them more susceptible to infection or complications, the matter should be processed as a reasonable accommodation request.
Districts can also take proactive steps, such as educating staff on coronavirus transmission, encouraging frequent handwashing and respiratory etiquette, and implementing social distancing measures (e.g., reducing classroom numbers, spreading out desks, limiting large congregations of staff and students). These efforts should hopefully help reduce staff and student anxiety levels.
Districts should keep in mind that if an employee refuses to engage in certain work functions (e.g., conferences that require travel), this could be protected activity for purposes of the Public Employee Health & Safety Act. Employers should take caution before taking adverse action against an employee for this kind of refusal.
May the District require staff members who display COVID-19 symptoms or who have recently returned from travel to stay home for a “quarantine” period?
Likely yes. During a pandemic, employers are generally permitted to ask employees if they are experiencing symptoms associated with the pandemic and to require employees who report or display such symptoms to stay home. However, the employer must maintain any information regarding employee symptoms as a confidential medical record.
Also, if state or local health officials or the CDC recommend that people who visit specified locations remain at home for a period of time until it is clear they do not have symptoms, the District may ask employees who return from travel (including personal travel) if they visited such locations and comply with CDC recommendations in that regard.
What protections apply to absences related to coronavirus?
Absences related to an employee’s own COVID-19 testing and/or infection, or to care for a covered family member who has or is being tested for COVID-19, may be covered by the Family and Medical Leave Act (“FMLA”). Likewise, if the District has opted in to the New York Paid Family Leave (“NYPFL”) law, absences to care for a covered family member with COVID-19 would be protected by that law. And, even if an employee is not covered by or has exhausted FMLA and NYPFL leave, absences related to an employee’s own COVID-19 diagnosis or underlying medical condition may be protected as a reasonable accommodation.
Employees may also be entitled to use accrued sick time, other accruals, and other leave for coronavirus-related absences, depending on the terms of the District’s policies and CBAs.
Districts should also be aware that the U.S. House of Representatives has passed a bill that would, if enacted, extend the FMLA to be available for additional reasons related to coronavirus. The bill would also create a nationwide paid sick leave program that would apply to virtually all employers, including school districts. The U.S. Senate is expected to vote on this proposed legislation soon.
Do the terms of the collective bargaining agreement with our instructional and non-instructions staff impact the analysis?
Yes. Districts should review the terms of any collective bargaining agreements. To the extent that you may have some staff who continue to work, review any layoff, recall, and bumping language – this would more likely be relevant for your non-instructional staff. Also, as noted above, employees may also be entitled to use accrued sick time, other accruals, and other leave for coronavirus-related absences, depending on the terms of the District’s policies and CBAs. Of course, terms related to paid time off (accrual and usage) will be applicable. Moreover, provisions about emergency closures (perhaps covered under any provisions about snow days) and possibly negotiated leave policies could be implicated.
Must the CSE continue to conduct annual reviews?
Yes. This State of Emergency was announced during the unusually busy Annual Review Period. While this process must continue, we do anticipate a disruption in operation. Our state regulations do not currently allow for alternate participation by the entire CSE, however we suggest you seek written consent of the parent(s) to conduct meetings using alternate technology (i.e. Skype, telephone conference).
What accommodations or modifications are schools required to provide to students with disabilities during the period of closure?
If the school is providing education to its general student population during the period of closure, then it must do so equally for its students with disabilities, including the provision of a free appropriate public education (“FAPE”). For students with identified needs, the school should make an effort to modify their educational materials to the extent practicable. For students who require instructional services or accommodations, if the school is providing distance-learning opportunities, then the school must provide similar opportunities, equal access, and the necessary extra assistance through the same modalities to students with disabilities.
Upon return to school after closure, what are the school’s obligations relative to students with disabilities?
Generally, schools will be required to make individualized determinations upon reopening as to whether compensatory services for students are necessary, including to make up for any skills that may have been lost. This may require the school to convene additional meetings, evaluations and/or assessments. However, this may not be required if the school is able to provide the special education and related services identified in the student’s individualized education program (“IEP”) during the extended closure.
