Certain questions frequently arise in independent schools. With the following guidance in mind, independent schools may consider visiting (or revisiting) their policies and practices for the upcoming school year.

Question: When Do Independent Schools Need to Provide an FMLA Notice of Eligibility?

Answer: Independent Schools Must Provide an FMLA Notice of Eligibility Whenever the School Learns That an Employee's Leave Might Be Eligible for an FMLA-Qualifying Reason.

One thing that is commonly overlooked when managing employee leave is the requirement to provide employees notice of whether they are eligible to take leave under the Family and Medical Leave Act (FMLA). The FMLA imposes several notice requirements on independent schools. First, schools must provide written notice of an employee's eligibility to take job-protected leave for covered reasons under the FMLA. Second, schools must provide a notice of employees' rights and responsibilities under the FMLA. Third, once the school has enough information to determine whether the FMLA applies, the school must provide the employee a notice designating their leave as job-protected, FMLA leave.

Under the FMLA, independent schools must provide a notice of eligibility to an employee the first time the employee takes leave for an FMLA-qualifying reason in the school's designated twelve-month leave year. The eligibility notice must be provided:

• within five business days of the initial request for leave; or
• when the school first acquires knowledge that an employee's leave may be for an FMLA-qualifying reason.

The eligibility notice may be either oral or in writing, must inform the employee of their eligibility status, and, if the employee has been determined to be ineligible for FMLA leave, state at least one reason why. The eligibility notice must also be accompanied by a notice outlining the employee's rights and responsibilities under the FMLA. Where appropriate, schools may also include with the eligibility notice a medical certification form for the employee to complete, to provide additional information about the medical condition causing the employee to require leave.

The U.S. Department of Labor has published sample FMLA forms, including the Eligibility Notice, the Notice of Rights and Responsibilities, and the Medical Certification form, on its website.

Schools that fail to provide the requisite FMLA notices may become liable for interference with, restraint of, or denial of an employee's FMLA rights.

To avoid a potential FMLA interference claim, independent schools should hardwire their leave management procedures to ensure that the FMLA Eligibility Notice, Notice of Rights and Responsibilities, and Medical Certification Form (if applicable) are provided whenever an employee notifies the school of a need for leave that could be covered under the FMLA.

Question: Are Independent Schools Covered by HIPAA?

Answer: Independent Schools Are Generally Not Covered Entities Under HIPAA.

It is a frequent refrain heard among school nurses and counselors: medical and/or mental health information in the school's possession concerning its students is covered by HIPAA and is protected from disclosure. Or, in the case of a more recent example, employees' COVID-19 status is protected under HIPAA. But what is HIPAA anyway, and does it actually apply to schools?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that requires the creation of national standards to protect sensitive patient health information. HIPAA's rules apply to "Covered Entities," which are limited to healthcare providers that electronically transmit health information in connection with certain transactions; health plans, including employer-provided group health plans that provide for or pay for medical care; and healthcare clearinghouses that convert health information from a standard HIPAA format to a nonstandard format, or vice versa. Most of HIPAA's rules also apply to "Business Associates," which encompass a Covered Entity's contractors or vendors that use or disclose individually identifiable health information in the course of providing services to the Covered Entity.

Notably, most employers are not considered to be Covered Entities. Maintaining records with employee health information, such as documentation regarding an employee's need for medical leave, does not make an employer a Covered Entity. Offering health insurance or any other type of group health plan does not make an employer a Covered Entity. Employers are considered to be legal entities separate from the group health plans they offer. The plan is a Covered Entity, but the employer is not.

Even though HIPAA does not generally apply to independent schools, the Americans with Disabilities Act and other general privacy laws protect medical information (diagnosis, treatment, accommodations). Under these laws, any medical information gathered must be kept private.

Question: Do Independent Schools Need to Comply with FERPA?

Answer: Independent Schools are Not Covered Entities under FERPA.

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. FERPA serves two primary purposes: 1) it gives parents or eligible students more control over their educational records, and 2) it prohibits educational institutions from disclosing "personally identifiable information in education records" without the written consent of an eligible student or, if the student is a minor, the student's parents.

FERPA applies to all public K-12 schools and post-secondary schools. FERPA applies only to non-public schools that receive federal funds provided to the school "by grant, cooperative, agreement, construct, subgrant, or subcontract" under an applicable program of the U.S. Department of Education.

To trigger FERPA, independent schools must actually receive direct funding from a program run by the U.S. Department of Education. FERPA is not triggered if a school or its students receive materials or benefits under a U.S. Department of Education program. For example, the E-rate program provides discounted internet services to schools but does not actually distribute funds to schools. Therefore, participation in the E-rate program does not trigger FERPA. Nor does receipt of materials "on loan" from another federal program trigger FERPA coverage.

Although many independent schools are not covered by FERPA, they must comply with other laws protecting the privacy of student records. Most states have statutes or common law rules that generally protect individuals' right to privacy, which may be construed to prohibit schools from disclosing records or other information pertaining to students to individuals other than the student or their legal guardians.