Flexible Instructional Days

Flexible Instructional Days are permitted during certain emergencies that prevent a school building from opening. The emergencies are delineated in Act 64 and include hazardous weather conditions, damage to a school building and a disease epidemic. School entities are limited to five (5) Flexible Instructional Days per school year.

A public school entity must submit an application to the Pennsylvania Department of Education (PDE) for approval of its Flexible Instructional Day program. The application to PDE must include:

• Procedures for the school entity to notify parents, students and professional employees of the Flexible Instructional Day
• Whether the entity will use technology during the day and  how it will accommodate students and professional employees without internet access at home
• Responsibilities of professional employees and students during the day
• Procedure for identifying student participation for the purpose of enforcing attendance
• An instruction exemplar
• Assurance of compliance with the Individuals with Disabilities Education Act (IDEA)

A public school entity must also submit to PDE proof that the board of school directors has approved the proposed program. PDE will inform a school entity by November 1, 2019 if the program has been approved.

Compliance Risks

A school entity should give serious thought to the pros and cons of a Flexible Instructional Day program. The new law does not supersede or preempt a collective bargaining agreement or the rights and remedies afforded to school employees or labor organizations under state and federal laws. As a result, there are several potential labor issues that may arise from the adoption of the program, such as requiring teachers to use different methodologies of instruction that are not typical of classroom instruction, which may require bargaining. 

In addition, the new law requires each school entity to comply with the IDEA – failure to do so may result in a student being awarded compensatory education. A school entity must also consider how it will comply with Section 504 Service Agreements to avoid potential exposure for compensatory education. Although the law does not require students to receive health services on a flexible instructional day, guidance issued by PDE states that student must be provided with health services on these days.

Considering these potential pitfalls, the adoption of a Flexible Instructional Day program should be taken with sound legal preparation to mitigate risks and ensure compliance. 

In addition to this law, several bills were signed in 2019 that amend key elements of the Public School Code. This alert is the first in a series that will apprise public school entities of critical legal developments.