A COVID-19 Q&A for Independent Schools: The Second Installment

As the COVID-19 pandemic continues, the legal landscape similarly continues to rapidly evolve, forcing independent schools to grapple with new questions and issues on a daily basis. In its second installment of COVID-19 Q&A for Independent Schools, the Venable Independent School Law team addresses the common questions and issues that schools are facing.

Communicating with the School Community About Positive COVID-19 Cases:

Should Schools Continue to Notify the School Community of Positive COVID-19 Cases?

Maybe. The fact that many schools have been engaging in remote work and distance learning for a few weeks now, coupled with the ever-increasing number of confirmed COVID-19 cases, especially in hotspots, may lead schools to the conclusion that it is no longer necessary to notify their community of each individual case. But at this stage in the dynamic landscape of COVID-19 communications, there’s no “general rule;” instead, according to Christopher Lukach of AKCG – Public Relations Counselors, schools should ask themselves the following questions:

Does this diagnosed/suspected case call for members of the school community to modify their behavior and/or take additional precautions or change behaviors?
Does the school have reason to believe other members of the community (either broadly or a more limited group) have been exposed to the affected individual? When did the affected individual begin to show symptoms? Had the affected individual been interacting in the school community within the COVID-19 incubation period?
What standard is our local Department of Health setting? If the local department is still engaged in contact tracing, it may be spreading the word for us … and there’s great value in the community hearing about potential exposure from us. Has the Department of Health instructed you to take (or not take) certain action(s)?
What expectation have we set in our earlier COVID-related communications (if any)? And, to that end, what is our community’s expectation? If we’ve set a standard of transparency – even at the risk of over-communication, it’s worth upholding this standard. If there have been no prior COVID-19 communications, is your school’s culture one that calls for full and transparent communication?

When issuing any such communication, schools should continue to be cognizant of individual privacy considerations, enable members of the school community to make informed decisions about their potential exposure to COVID-19 and reinforce the school's commitment to the health, safety and well-being of the community as a whole.

Planning for Extended Distance Learning:

Independent schools that have deployed distance learning programs as an interim measure are now faced with the prospect of conducting the remainder of the school year exclusively online. In fact, two such states – Kansas and Virginia – have ordered closure of public and private schools through the end of the school year. As schools begin building a distance learning curriculum for the balance of the school year, they may want to consider the following questions.

What Are My State's Minimum Requirements for Instructional Time (and Do They Apply to Independent Schools)?

Each state imposes minimum requirements for the number of days or hours students must attend school each year. Some accrediting bodies have requirements for independent schools. However, many states have taken steps to relax, eliminate, or waive those requirements as a result of the extended closures of schools' physical campuses and move to remote learning due to COVID-19.

When creating contingency plans for the remainder of the school year, independent schools must ensure that their distance learning programs meet any and all applicable state requirements for instructional time with an eye to the following:

the applicable state or accrediting body requirements for instructional time and whether they apply to independent schools;
whether the requirements have been eliminated or a waiver has been developed to excuse schools from meeting requirements due to the COVID-19 pandemic; and
whether distance learning programs count toward meeting instructional time requirements.

Does distance learning count as instructional time for purposes of meeting instructional days requirements?

Schools should not assume that any period of distance learning will count toward minimum instructional time requirements. Rather, consult applicable state laws, regulations, and any agency guidance to determine whether a period of distance learning will be counted. While many such state laws apply only to public schools, it is prudent for independent schools to confirm whether they are also governed by their state's laws. Regardless, consider the following:

Whether distance learning may count for course credit;
Whether student participation is required and, if so, procedures for tracking attendance and student participation;
How to ensure that all students have access to the technology required to participate in the distance learning program; and
Whether to make alterations to the program as necessary to enable students with disabilities to participate in distance learning.

Updated ADA Guidance for Employers Regarding Employee COVID-19 Inquiries:

On March 19, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on the Americans with Disabilities Act and COVID-19, as well as its Pandemic Preparedness Guidance. Certain of these guidelines better allow employers to comply with CDC recommendations for reducing the threat of COVID-19 exposure in the workplace. It should be noted that this guidance should be considered to override guidance provided on the same point in the March 16, 2020 COVID-19 Q&A for Independent Schools:

During a pandemic, Americans with Disabilities Act-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat.
Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature.
Employers may delay a start date or withdraw a job offer because the employee has COVID-19 or symptoms of COVID-19.

Teleworking and Employee Leave:

Should My School Permit One-on-One Videoconferencing between Teachers and Students?

Many schools are challenged by how best to ensure that faculty and students continue to maintain appropriate boundaries while also conducting classes remotely. Remote learning, by its very nature, challenges customary guidelines on faculty/student interaction. Thus schools that ordinarily strictly limit one-on-one interaction between faculty and students are considering whether to impose similar boundaries while working remotely and engaging in distance learning.

While each school's response to this situation will vary, based on its distance learning plans, existing policies and practices, and its culture, the following steps are important for all schools to take to ensure the maintenance of appropriate interactions between students and faculty during distance learning:

Communicate with parents regarding the scope of the school's distance learning program and the school's expectations for use of the distance learning platform through a distance learning policy. Specifically describe the distance learning plan and explain the various ways in which online platforms may be used for both asynchronous and synchronous learning. Schools utilizing live video conferencing as part of their plan should communicate to parents and students the expectations of use, disclose whether video conferences will be recorded, establish the school's policies and procedures for faculty interactions with students during distance learning, and consider obtaining parents' consent for their child to communicate with faculty via the distance learning platform.
Develop procedures for faculty interactions with students during distance learning, which may include:

Requiring faculty to utilize the distance learning platform provided by the school for communications with students and prohibit the use of personal cell phones or personal e-mail for such communications;
Reminding students and faculty about appropriate conversation topics;
Reminding faculty to be mindful of their backgrounds and environment during a videoconference;
Requiring faculty to hold videoconferences in small groups in lieu of one-on-one communications whenever possible;
Where alternatives to one-on-one communications are unavailable, adopting rules for one-on-one videoconferences that reflect the school's existing boundaries policies. For example:

Require faculty to notify parents via e-mail of the need to schedule a one-on-one videoconference. Explain the purpose of the videoconference and invite parents to attend, if desired. Consider requiring faculty to copy their division directors on all such e-mails.
Clearly define the purpose of one-on-one meetings with students and set time limits for when such conversations can take place.
Instruct faculty to notify their administrators immediately of any concerns that may arise as a result of such videoconference, such as concerns for student safety and well-being. The school administration should collectively determine, based on the facts of each situation, whether further action is warranted.

How Do I Manage My Remote Workforce?

Review, and implement, if necessary, a teleworking policy for employees. A telecommuting agreement is an effective tool for establishing the rules for working remotely. The agreement should set forth expectations about work hours, work conditions, and job duties, and reiterate that all of the policies that regularly govern employee conduct (such as prohibitions on harassment) still apply during any period of remote work.
Establish Remote Timekeeping Procedures for Non-Exempt Staff. Traditionally, non-exempt staff are discouraged from working remotely because of the difficulty of tracking work hours for telecommuting employees. COVID-19 has changed the traditional work environment, however, and now many schools have been forced to create teleworking opportunities for non-exempt staff, such as administrative assistants and data entry personnel, to ensure business continuity. To prevent costly wage-and-hour violations, schools should establish virtual sign-in sheets or other timekeeping procedures for all non-exempt employees who are permitted to telecommute.
Remind employees (in writing, preferably) that telecommuting is a temporary measure. This reminder will help avoid claims that an employee should be permitted to telecommute permanently. This is particularly important in the disability accommodation context, where employees may request permanent telecommuting as a reasonable accommodation of their inability to travel to the workplace. If the employer believes one or more of the employee's primary job duties cannot be performed remotely on a permanent basis, it should disclose that fact to the employee now rather than later.

What If an Employee Cannot Work or Telework Due to Their Own or a Family Member's COVID-19 Diagnosis or Due to Closed Schools or Other Childcare?

In our March 20, 2020 newsletter – COVID-19 and Paid Sick Leave: What Independent Schools Need to Know – we reviewed the paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA). Be mindful that state or local laws may provide for additional leave above and beyond that contained in the FFCRA.

Consider the applicability of the EFMLA and/or the EPSL: On March 24, 2020, the Department of Labor issued additional informal guidance on the FFCRA which clarified how schools should count employees to determine whether they are required to provide EMFLA leave or EPSL leave.

The EMFLA and EPSL require schools with fewer than 500 employees at the time the leave is taken to provide partially paid leave. To count employees for purposes of this threshold, include full-time and part-time employees within the United States; employees on leave; temporary employees who are jointly employed by the school and another employer (regardless of whether the jointly employed employees are maintained on only your or another employer's payroll); and day laborers supplied by a temporary agency. Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of this threshold.

If an employee is eligible for both EPSL and EFMLA: Generally speaking, employees who are unable to work or telework because of school closures or other lapses in childcare are eligible for both EPSL and EFMLA leaves. Such employees are entitled to a total of twelve (12) weeks of paid leave under the FFCRA. In other words, employees may use their EPSL during the first ten workdays of EFMLA leave (which would otherwise be unpaid). Employees may also elect to use existing vacation, personal, or medical or sick leave.

Tuition Refunds:

How should my school handle requests for tuition refunds?

Although most independent schools across the country have successfully launched distance learning programs that continue to provide high-quality educational services to their students, many schools are still anticipating an influx in tuition refund requests in the coming weeks and months.

Schools would be wise to consider how they will response to such requests. In doing so, consider the following questions:

Ensure that the school's distance learning plan provides instruction equivalent to in-class instruction. Demonstrate the school's commitment to providing high-quality educational services by confirming that the school's distance learning plan is contained in a comprehensive, written document that may be provided to parents, if needed. The distance learning plan should address training for students and teachers, faculty guidance, distance learning policies, and a summary of teaching plans, if available at this time.
Review the parties' obligations under the enrollment contract. The terms of many enrollment contracts state that tuition becomes non-refundable after the cancellation date and, further, that the obligation is not abated due to circumstances beyond the school's reasonable control (commonly referred to as a force majeure clause). Review your enrollment contract to determine the respective rights and responsibilities.
What if the contract does not contain a force majeure clause? Even if your contract does not contain a force majeure clause, certain legal principles (specifically, impossibility, impracticability, and frustration of purpose) may similarly compel the conclusion that the tuition obligation is not excused during any period of distance learning.
Generally speaking, these legal principles may apply where holding in-person classes is no longer possible, is impractical or unreasonable, or is obviated as a result of COVID-19.

Determining whether one of these doctrines applies to excuse performance under a contract is a contract-specific, law-specific, and fact-specific inquiry. Schools should consult with their legal counsel to better understand whether impossibility, impracticability, or frustration of purpose may apply to address cessation of in-person learning as a result of COVID-19.

What about auxiliary services? Are payments for auxiliary services, including items such as transportation, lunch, and before/after care, treated differently than tuition in the school's agreements with parents? Schools should determine whether they are able to continue to provide these auxiliary services while conducting classes remotely when determining whether to grant refund requests for these types of services.
What about daycare? Again, 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.

Construction Issues:

Will insurance cover COVID-19-related losses associated with my school's construction project?

Independent schools with active construction projects may feel COVID-19's impact in another way. Faced with deadlines to complete pending projects, city and state orders for residents and non-essential workers to "shelter in place," and substantial supply chain disruptions, it is imperative for schools to consult their insurance policies to determine whether coverage exists for the extra expenses and losses schools can expect to incur. While builders' risk policies typically cover buildings under construction and related losses, pollution liability policies may provide coverage for business interruption due to viruses, and commercial general liability policies may provide coverage for damages which resulted from temporarily pausing work.

Every set of facts will be different, and every policy will contain its own variations on language and endorsements that can significantly change or broaden coverage. It is important to review any applicable insurance policies and communicate with the school's carrier sooner, rather than later, to address any coverage concerns.