As states continue to move forward with their reopening plans, most institutions of higher education are beginning to plan for students, faculty, and staff to return to campus. In response, states and federal agencies are offering guidance for a safe reopening. For example, New York State – once the epicenter of the COVID-19 pandemic – recently released its guidance for Phase Four industries, including guidance for institutions of higher education (IHEs). Similar to guidance from earlier phases, it requires that IHEs ensure proper social distancing, use of personal protective equipment (PPE), adequate hygiene, cleaning and disinfection, and screening, and that they affirm compliance with the IHE Guidance.
The guidance requires, at a minimum, that IHEs address four categories in their reopening plans: reopening, monitoring, containment, and shutdown.
Reopening of the Campus: IHEs must develop a plan for safely restarting campus operations, including the return of students, faculty, and staff. This plan must consider:
- Capacity: Determine how students, faculty, and staff will return to campus (i.e., phased return) and the quantity of individuals permitted on campus;
- PPE: Ensure sufficient PPE for employees, determine if PPE will be provided to students, and develop requirements for use of PPE on campus;
- Testing: Plan for screening and diagnostic testing of students and faculty for COVID-19 upon return, including whether individuals will be tested, who will be tested, the frequency of testing, the method of testing, notification of results, and the process for those arriving on campus untested;
- Residential Living: Plans should include protocols for residential living, considering, among other things, social distancing, PPE, cleaning and disinfecting, large gatherings, visitors, students who are higher risk, and students in isolation or quarantine;
- Operational Activity: Determine how classes, shared spaces, and activities may be adapted in various phases of return and operations;
- Restart Operations: Implement plans to safely reopen buildings;
- Extracurriculars: Institute policies regarding extracurricular programs and which activities will be allowed;
- Vulnerable Populations: Consider vulnerable populations on campus and individuals who may not feel comfortable returning, and how to allow them to safely participate in educational activities and accommodate their specific circumstances; and
- Hygiene, Cleaning and Disinfection: Establish campus-wide cleaning, disinfection, and hygiene protocols for individuals, classrooms, residence halls, restrooms, dining halls, and other facilities.
Monitoring of Health Conditions: IHEs must implement policies to track health conditions on campus, and such policies must address:
- Testing Responsibility: Identify who is responsible for purchasing and administering testing, and for notification of test results;
- Testing Frequency and Protocols: Determine testing frequency and process;
- Early Warning Signs: Define metrics that will serve to evaluate early warning signs that positive cases may be increasing beyond an acceptable level;
- Tracing: Consider plans for contact tracing in accordance with the New York State Contact Tracing Program; and
- Screening: Develop plans for regular health screening of employees (daily), students (periodically, but not daily), and visitors.
Containment of Potential Transmission of COVID-19: IHEs must develop plans for how to respond to positive or suspected cases, and preventative policies and practices. Such plans, policies, and practices must consider:
- Isolation: Identify how to isolate symptomatic individuals (residential and non-residential), including where such individuals will be residing during isolation, and the support system that will be provided, including food, medicine, psychosocial, academic, and/or other support;
- Quarantine: Identify how exposed individuals (residential and non-residential) will be quarantined away from others;
- Students Confirmed or Suspected to Have COVID-19: Residential institutions must include plans to monitor and provide medical care and other health services to students who test
- positive and are in isolation, need more advanced medical care, or are awaiting test results;
- Hygiene, Cleaning, and Disinfection: Implement strategies for cleaning and disinfecting exposed areas and appropriate notification to occupants of such areas; and
- Communication: Develop plans to share protocols and safety measures.
Shutdown Necessitated by Widespread COVID-19 Transmission: IHEs must develop contingency plans for decreasing on-campus activities and operations and/or closing campus in the event of widespread transmission. Such plans must address:
- Operational Activity: Include which operations will be decreased or shut down and which operations will be conducted remotely, and the process to conduct an orderly shutdown;
- Move-out: Residential universities must implement plans for how students would safely depart campus, considering those who may not be able to depart campus quickly; and
- Communication: Develop plans to communicate internally and externally throughout the process.
Additionally, because IHEs offer a variety of activities, the guidance directs IHEs to consider other relevant industry-specific guidance, such as operations of food services, transportation, retail activities, office-based work, etc., that has already been published by the state for other phases.
The guidance outlines the minimum requirements for reopening IHEs, and institutions are free to implement additional precautions or increased restrictions. Unlike in other industries, the guidance does not contain a template safety plan. Rather, IHEs must develop reopening and operating plans and submit such plans to the Department of Health for approval prior to reopening.
IHEs should also consider the U.S. Centers for Disease Control and Prevention's (CDC) recently issued interim considerations for IHEs that provides some guidance for implementing COVID-19 symptom screening and diagnostic testing for students, faculty, and staff on-campus. This guidance is intended to supplement existing federal, state, and local guidance on implementing interim protections to slow the spread of the coronavirus disease.
Highlights of the CDC's guidance published June 30, 2020 include the following.
Recommendations for Utilizing Testing
The scope of an IHE's testing efforts may be informed by its size and resources, and the disease transmission rate in its geographic location. Viral tests approved or authorized by the Food and Drug Administration may be used to evaluate COVID-19 infection for students, faculty, or staff. Students, faculty, or staff with COVID-19 symptoms should be referred to a healthcare provider that can conduct viral testing. Measures such as providing distance learning options and isolation in residence facilities for symptomatic individuals should be promptly implemented, as appropriate.
Daily symptom screenings such as temperature checks may be helpful to some IHEs, although these checks will not identify asymptomatic or pre-symptomatic infected individuals.
Antibody testing used to detect past infection for students, faculty, and staff is not recommended by the CDC at this time. Relatedly, we also wrote about the Equal Employment Opportunity Commission's prohibition of mandatory antibody testing for employees here.
Testing Asymptomatic Individuals
Testing is recommended for individuals who have been in close contact with persons positive with COVID-19. In high-density settings, such as residence halls, broader testing is recommended for individuals in mere proximity to persons positive for COVID-19. However, the CDC does not recommend comprehensive testing of all asymptomatic students, faculty, and staff upon their entry to campus. According to the CDC, the efficacy of such entry testing for reducing transmission of the disease is unknown.
New York's guidance and the CDC's guidance will likely evolve as more is learned about COVID-19. We will continue to monitor developments in this area and will provide updates as more information is released. For now, as more regions begin to enter Phase Four, IHEs in New York should begin consulting with counsel to prepare their reopening plans, and to be informed about any additional guidance or changes to New York's or the CDC's guidance.
IHEs seeking guidance on compliance with New York's or the CDC's reopening guidelines, or any other questions, should feel free to contact Michael Volpe at MJVolpe@Venable.com, Doreen Martin at DSMartin@Venable.com, Allison Gotfried at ABGotfried@Venable.com, Teresa Biviano at TMBiviano@Venable.com, Sarah Fucci at SAFucci@Venable.com, or any other member of Venable's Higher Education or Labor and Employment Groups.
For additional information regarding COVID-19 legal issues, please visit Venable's COVID-19 Resources Page.