At this point, a substantial number of independent schools across the country have already moved to temporary remote learning models to combat the spread of COVID-19 through their communities and ensure social distancing. Moving to remote learning was an initial decision made in response to the quickly intensifying pandemic. However, the work does not stop there. There are a number of additional issues schools will need to consider as they continue with remote learning and prepare for a return to campus.
Below, the Venable Independent School Law team reviews some of the questions and scenarios schools may confront in the coming weeks:
How are employees being compensated when the physical campus is closed, but students are engaged in remote learning?
Issues of employee compensation will be governed by federal, state, and local laws; collective bargaining agreements (if any); individual employee contracts; and school policies.
While school facilities may be closed, many faculty and staff may continue working from home and should continue to be compensated for work performed. If an employee is not performing any work (including remote work), under federal law, specifically the Fair Labor Standards Act, as well as the majority of state and local laws, schools are not required to pay nonexempt employees (meaning those employees who are required to be paid overtime).
For exempt employees (meaning those employees who are not required to be paid overtime) and with the exception of teachers (who are not subject to the FLSA's salary requirements), schools are generally not permitted to reduce their salary if they have performed any work in the workweek. An exempt employee must receive the full salary for any week in which the employee performs any work (including remote work), regardless of the number of days or hours worked. Teachers are exempt from the salary level and salary basis requirements under federal law, and schools may pay them on an hourly basis or deduct wages in hourly increments; however, such pay practices should be applied in a consistent manner. Exempt employees do not need to be paid for any workweek in which they perform no work.
For those employees whose job responsibilities cannot be performed remotely, such as custodial employees and coaches, consider whether it is financially feasible and consistent with the school's culture to continue to pay such employees when the physical campus is closed. This may be a perfect time to undertake projects that are difficult to perform when school is in session, such as painting, repairs, and inventory. Finding ways to perform these functions with limited contact between employees could be a win-win: long-overdue tasks will be performed, and employees will continue to be paid.
Note, however, that employee compensation may be affected by Congress's efforts to provide for paid leave to employees in light of COVID-19. In the early hours of March 14, 2020, the House of Representatives passed a bill that would provide for partial paid leave for employees who must take leave to care for either themselves or a family member as a result of COVID-19. It would be wise to continue monitoring Congress's efforts.
How do I handle paid leave when the physical campus is closed?
While compensation will continue for those employees who are able to perform remote work, employees may become sick and thus be unable to satisfy their job responsibilities, even on a remote basis. Employees may also be prevented from performing their work on a remote basis because they are providing care to a household member who is ill. Again, consult federal, state, and local laws; bargaining agreements (if any); individual employee contracts; and school policies and procedures to determine whether and how to apply paid leave. Depending on the severity of the illness and the amount of time the employee is unable to work, the employee may be eligible for FMLA and/or short-term disability leave. Culture and sensitivity to the needs and challenges faced by employees during this difficult time will impact morale and may have a long-term impact on the loyalty and commitment of employees to the school.
Schools may also want to consider providing additional paid leave to employees who may not otherwise be eligible for paid leave, or who run out of paid leave benefits. For example, an employee may not be eligible for paid time off, have limited time granted to them, or have used the leave they are provided. Schools may want to credit employees with an additional fixed number of days that can be used after they have exhausted any available leave.
Again, keep in mind that Congress's efforts to provide paid leave in light of COVID-19 are currently being considered, which would allow for additional assistance.
Are schools still obligated to pay third-party service providers while the physical campus is closed?
While the physical campus is closed, many schools won't require the services of vendors, such as food, cleaning, or transportations services. Schools should carefully review any contracts with these service providers to determine whether the school is obligated to continue making payments during times when service is not provided. Vendors are certainly evaluating their rights to payment and may be willing to modify payment obligations. Communicating with service providers may prove valuable and allow for a reduction in fees or even the forgiveness of financial obligations. It is important to remember that contracts may be silent on the issue of payment during a pandemic or "act of god." In all instances, legal consultation prior to a conversation with the vendor is prudent.
As with employees unable to perform their job remotely, venders may be able to provide services while the school is empty that are difficult to accomplish when the buildings are occupied. A discussion with vendors about alternative work may benefit the school if payments under the contract cannot be mitigated. To the extent that schools are undergoing deep cleans and disinfecting their campuses during the school closing, custodial service providers may be able to perform this work and may have more robust methods than are provided during the normal school year and may offset the cost of the funds paid.
Does your school's distance learning program meet state requirements for instructional days?
Schools may be required to provide a minimum number of instructional days per school year under state education laws or accreditation standards. Schools should review their applicable requirements, including guidelines for what constitutes an "instructional day," to ensure that they meet these requirements during the 2019-2020 school year. Schools that are implementing distance-learning programs should ensure that their lesson plans provide enough educational activities per day to meet state requirements for an instructional day.
As a best practice, communications regarding distance-learning programs should make clear that all schoolwork performed during distance learning programs is considered an "instructional day" for purposes of meeting state requirements. Schools should set the expectation that students must spend at least the state's minimum required number of hours completing distance learning per instructional day during the school closure.
Does your distance-learning provider require parental consent?
Various online platforms may be useful to schools moving to distance-learning models. The Children's Online Privacy Protection Act (COPPA) protects the privacy of children under the age of 13 by requesting parental consent for the collection or use of children's personal information. Generally speaking, a school that uses various online platforms for educational purposes does not need to secure individual parental consent. In essence, the school is able to consent on the parents' behalf.
How do I maintain classroom normalcy during distance-learning programs?
Distance learning presents unique behavioral challenges for students who are accustomed to a more structured learning environment. Schools should be prepared to address student issues that may arise from online learning, such as bullying and cyberbullying issues, as well as cheating and other academic dishonesty.
The school should emphasize to students and parents that its student handbook and code of conduct still apply during school closures and should reinforce its expectations for student behavior during distance learning. Schools should remind students that violations of the school's policies will still be subject to disciplinary action, just as if school is conducting classes on campus.
Communicate with students to emphasize the importance of respectful online communications and ask parents to partner with faculty to ensure that their students understand the school's expectations while participating in distance learning. In addition, schools should anticipate parents' concerns during a prolonged school closure. For example, parents working from home may struggle with balancing their work responsibilities and facilitating students' distance-learning programs or may not be satisfied with the school's distance-learning offerings. To prevent these concerns from escalating, provide ample resources for parents to understand and assist with their students' distance-learning programs.
Should schools close their childcare programs?
Some schools operate various types of childcare programs in addition to their regular K-12 educational programs. These include before- and after-school care for school-aged children, pre-school programming for three- and four-year-olds, and daycare services for babies and toddlers. Those schools that have moved to remote learning but also operate such childcare programs are facing a tough decision—should we close the childcare programs? Often faculty and staff members utilize such childcare programs, and those employees are likely working remotely and providing distance-learning services, and thus still need childcare. Furthermore, unlike K-12 classes, it may not be practical to substitute childcare with distance-learning alternatives.
Practical Considerations: Schools considering keeping their childcare programs open should weigh the benefits of continuing the service against the risks associated with the transmission of COVID-19 to students attending childcare, to staff providing childcare services, and to the greater community at large. Specifically, schools should:
- Conduct a risk/benefit analysis of keeping the childcare program open versus closing by:
- Reviewing insurance policies to determine the school's potential liability in the event an employee or child contracts COVD-19 in the daycare program;
- Considering whether the families affected by the childcare closure are school employees, as their ability to perform their jobs via online learning will be negatively impacted if childcare is no longer available.
- Communicate with the childcare community to inform them of the risks of COVID-19 transmission by continuing to utilize childcare services while the K-12 community is engaged in remote learning. Consider having parents using the daycare services to sign a waiver and release.
- Review cleaning and disinfecting protocols for childcare spaces, as well as CDC recommendations, and increase the frequency of cleanings. Consider contracting a cleaning service that specializes in cleaning such areas.
- Reinforce good hygiene practice for childcare students, and for employees and parents.
- Consider requiring parents to drop off and pick up their children at the childcare entrance, instead of bringing their children into the facility, as a social distancing measure.
- Require parents to clean and sanitize all items brought to childcare, such as blankets, sippy cups, and bottles, on a daily basis.
- Consider limiting childcare students' access to and use of common "high-touch" spaces, such as playgrounds.
Payment of Tuition: Schools that have decided to close childcare services may consider whether they will refund and/or cease collecting any part of tuition for childcare students. When making this decision, it is prudent to review enrollment contracts or other agreements and determine each party's rights and obligations with regard to payment of tuition and consequences in the event of a force majeure event. Contractual responsibilities aside, the impact on culture and morale when deciding whether to issue refunds or require that families satisfy the contractual payment obligation for daycare services is substantial. On the other hand, failure to collect tuition for childcare services when they are closed may mean that those childcare employees will not be paid during the closure.
How can I recover costs incurred as a result of trip cancellations?
Most schools have made the decision to cancel school-related trips and travel because of the COVID-19 pandemic and are now coping with travel vendors' unfavorable refund policies. To attempt to recover travel-related losses, schools should follow up with their travel vendors to determine whether their refund policies have changed. Some companies have expanded their refund policies following the federal government's declaration of the COVID-19 pandemic as a national emergency.
If vendors' refund policies have not changed, consider whether it makes sense to pursue legal action to recoup amounts lost. Depending on the terms of the school's contract with the vendor, your school's legal team may be able to assist schools in recovering those losses from the school's travel vendor.
As schools plan to resume operations, how should schools respond to employees who are sick or who may have been exposed to COVID-19?
Develop an absence and return-to-work program for affected students and employees.
As schools plan to resume operations, they should be prepared to implement updated absence and return-to-work policies for students and employees affected by COVID-19 that are compliant with the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and related state and local laws.
Such a program should describe the school's policies regarding the following situations:
- When a student or employee should stay home from school;
- The types of leave available to employees who are absent because of COVID-19;
- The procedures an employee or student must complete before returning to school; and
- The protocol for individuals who have traveled to a COVID-19-affected location or have been exposed to an individual who has tested positive for COVID-19.
Again, keep in mind that such policies are likely to be affected by Congress's efforts to provide for paid leave in light of COVID-19.
Revisit leave policies for individuals affected by COVID-19.
During the school closure and thereafter, schools should be prepared to address an increase in COVID-19-related absences. Schools should review, and update, if necessary, their absence and sick leave policies to encourage affected employees to stay home if they or a household member is ill or exhibiting symptoms. Consider allowing employees to utilize PTO or other paid leave that has not yet been accrued during periods of self-quarantine or provide additional paid leave to employees who choose to or are required to self-quarantine because of COVID-19.
Again, keep in mind that such policies are likely to be affected by Congress's efforts to provide for paid leave in light of COVID-19.
How does the Family and Medical Leave Act apply to COVID-19-related leave?
Remember that eligible employees may take up to 12 weeks of FMLA leave for a serious health condition that renders the employee unable to perform the functions of his or her job. This also applies to employee leave to care for the employee's spouse, son, daughter, or parents who have a serious health condition.
Generally, flu-like symptoms in an ordinarily healthy person would not be considered a "serious health condition" that would make an employee eligible for leave under the FMLA. However, if an employee or an employee's family member experiences complications in connection with COVID-19, then the employee may be eligible for FMLA leave.
Pursuant to the federal COVID-19 response bill, if it is enacted into law in its present form, employees may be entitled to take FMLA leave under an expanded number of circumstances, including the following:
- If the presence of the employee would jeopardize the health of others because of exposure to the coronavirus or the exhibition of coronavirus symptoms, and the employee is unable to perform his or her job and comply with a healthcare provider's recommendation;
- To care for a family member who would jeopardize the health of others because of exposure to coronavirus or the exhibition of coronavirus symptoms; or
- To care for a child whose school has been closed, or whose child care provider is unavailable, because of a public health emergency related to coronavirus.
If the bill is enacted in its current form, employees taking leave under the foregoing circumstances would be entitled to 14 days of unpaid leave but may substitute paid time off in lieu of taking unpaid leave. After the initial 14-day period, schools would be required to provide partially paid leave.
Schools should review their procedures for FMLA leave, including procedures for providing the requisite FMLA eligibility notices, and be prepared for an increase in FMLA requests related to COVID-19 infections.
How does the Americans with Disabilities Act affect my school's pandemic response?
As it relates to the COVID-19 pandemic, the ADA restricts employers' disability-related inquiries and medical examinations for all applicants and employees.
Overall, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief that (a) an employee's ability to perform essential job functions will be impaired by a medical condition; or (b) an employee will pose a direct threat due to a medical condition. Therefore, schools should carefully consider how they implement their COVID-19 response to avoid ADA-prohibited employee medical inquiries or examinations.
Below we have addressed common questions regarding what information schools may obtain from employees during the COVID-19 pandemic.
Can I ask whether an employee has received a positive diagnosis of COVID-19?
It depends. Generally, the ADA prohibits schools from asking an asymptomatic employee questions regarding that employee's medical condition. However, schools have more flexibility when the employee's presence in the workplace poses a direct threat to the community. Whether COVID-19 rises to the level of a direct threat depends on the severity of the illness and/or additional guidance issued by the Centers for Disease Control.
Schools should tread lightly in making direct inquiries.
Which kinds of questions may schools ask employees?
Schools may ask employees questions that pertain to an employee's non-medical reasons for absence during a pandemic. For example, the following questions are permissible under the ADA:
- If schools or day-care centers were closed, would you need to be absent from work to care for a child?
- If other services were unavailable, would you need to be absent from work to care for other dependents?
- If public transport were sporadic or unavailable, would you be unable to travel to work?
- If you or a member of your household falls into one of the categories identified by the CDC as being at high risk for serious complications from the COVID-19 virus, would you be advised by public health authorities not to come to work? (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant, or other medical conditions; persons younger than 65 years of age with underlying chronic conditions; or persons over 65).
If an employee discloses that they have tested positive for COVID-19, how should my school respond?
While schools are generally not subject to HIPAA, schools must still respect an employee's privacy and confidentiality. If an employee voluntarily discloses that he or she has COVID-19 or a specific medical condition or disability that puts him or her at increased risk of COVID-19 complications, the school must keep the employee's identity confidential, unless the employee elects to voluntarily disclose their identity to the greater community. Schools should collaborate with the employee on communicating the existence of a positive COVID-19 diagnosis in a manner that protects and respects the employee's right to privacy and confidentiality.
If the employee reports to work, schools may ask them to go home.
Can we send employees home if they display flu-like symptoms?
How much information may we request from employees who report feeling ill at work or who call in sick?
If an employee reports that they are not feeling well or if they call in sick, schools may ask such employees if they are experiencing flu-like symptoms, such as fever, chills, a cough, or a sore throat. If they are experiencing these symptoms, schools may advise such employees to go home until their symptoms have resolved.
Can we ask to take employees' temperatures to determine whether they have a fever?
Generally, no. Measuring an employee's body temperature is a medical examination under the ADA and is not permissible under ordinary circumstances. Schools should consider implementing temperature checks only if advised to do so by the CDC or state or local health authorities.
Can we ask whether employees have traveled to locations identified by the CDC as having a heightened risk of exposure to COVID-19?
Yes. These would not be prohibited disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
May schools require employees who have been away from the workplace during a pandemic to provide a doctor's note certifying fitness to return to work?
Yes. As a practical matter, however, schools should consider a wide range of documentation to certify fitness to return to work, as doctors may not have time during the pandemic to provide traditional documentation of fitness for duty.
Under which circumstances would an employee with COVID-19 be entitled to a reasonable accommodation under the ADA?
The ADA requires employers to provide reasonable accommodations for individuals with disabilities during a pandemic. Schools are likely to encounter requests for leave or for telework privileges. As always, schools should undertake an individualized assessment of such requests in order to determine whether providing the accommodation would constitute an undue burden.
As you are aware, the legal issues impacting schools' responses to COVID-19 continue to evolve. Venable's Independent School Law team is available to respond to all of your questions and concerns.