As we approach the end of the school year, it is a good time for independent schools to consider updating their employee and parent-student handbooks for the 2021-2022 school year. With the many changes that schools had to make in response to the COVID-19 pandemic, a new administration, and other federal and state legal updates, it is important to ensure that your employee handbook is current and compliant, provides your school with flexibility, and mitigates potential risk. Below are some key issues that independent schools should consider in reviewing their handbooks.
Health and Safety Policies:
The COVID-19 pandemic forced schools to quickly develop and implement new health and safety measures to mitigate potential risks as students and employees returned to campus. Independent schools should consider evaluating which protocols may be modified or continued into the next school year and update their policies accordingly. Schools would be wise to review their existing safety protocols and update them, if necessary, to comply with any developments in federal, state, and local COVID-19 guidelines.
It is important to send the message to employees and families now that certain preventative measures currently in place may continue to be in effect in the 2021-2022 school year. Even though some employees and students may be vaccinated, many safety measures, like wearing masks, social distancing, mandatory flu shots, testing, daily health screenings, quarantine requirements, infectious disease policies, and policies regarding travel and activities outside of school will likely remain in place, albeit perhaps in modified form and incorporating distinctions between vaccinated and unvaccinated individuals. For example, some state departments of health have reduced physical distancing requirements from six feet to three feet. The Centers for Disease Control and Prevention (CDC) has also released new guidelines that eliminate testing and quarantine requirements for vaccinated individuals following domestic travel or potential exposure.
With the availability of the COVID-19 vaccine, independent schools should also update their policies to address whether they will require employees and/or students (if eligible) to receive the COVID-19 vaccine before the beginning of the school year. Schools are permitted to mandate that their employees and students receive the COVID-19 vaccine when they are eligible to do so, as discussed here. In determining whether to mandate the vaccine, schools would be well advised to remember that the safety and security of their community is of paramount importance. Just as schools adopted mask-wearing policies to protect their communities, so too can a vaccine mandate further mitigate the risk of the spread of COVID-19 and/or reduce the severity of illness if people become infected. Similarly, parents, employees, and other members of the community are concerned about their own safety and, as a result, are inquiring whether vaccines will be mandatory. In particular, many parents are asking whether teachers will be vaccinated.
For schools that are reluctant to implement a vaccine mandate at the present time, it is wise to include language in the school’s handbooks that reserves the right to mandate that employees and students receive the COVID-19 vaccine in the future, subject to religious or medical exemptions as provided by applicable laws.
Whether the school is mandating or reserving its right to mandate the COVID-19 vaccine, it should communicate its intention well in advance of the enrollment contract cancellation date and throughout the summer, so that employees and parents can plan accordingly.
Remote Work and Distance Learning Policies:
While schools were flexible in pivoting to distance learning and remote work in response to the pandemic, independent schools would be wise to delineate clear distinctions between permitting employees to work remotely in response to the government shutdown or quarantine orders, or other capacity restrictions, and the potential of remote work in the upcoming school year. It is important that employees understand now that they will be expected to return to work on campus, so that both the employee and the school can plan accordingly. Schools that are concerned that employees will want to continue working remotely into the next school year should clarify expectations for employees to perform work responsibilities on campus. While the school is required to consider accommodations for employees with disabilities, schools are not required to permit remote work as an accommodation. Should the school wish to allow certain employees to continue to work remotely, the school should revisit and refine policies regarding time keeping, communication during the workday, and work schedules. Schools would be wise to remind such employees that continued remote work is at the school’s discretion.
Schools that implemented distance learning programs may choose to continue to utilize certain of these resources in their curriculums moving forward. Such schools should consider updating and incorporating distance learning policies into their general parent-student handbooks.
Requirements to provide paid Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave Act (EFMLA) to employees under the Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020; however, independent schools have the option to voluntarily continue offering FFCRA leave and continue to receive the tax credit through September 30, 2021. Those schools that choose to voluntarily extend EPSL and EFMLA leave to employees must also provide paid leave for additional reasons, including to receive the COVID-19 vaccine, to recover from illness related to the COVID-19 vaccine, and to seek or await results of a COVID-19 test. Independent schools should ensure that their policies accurately reflect these new updates to the law, or remove the FFCRA policy, to avoid confusion.
In addition to the FFCRA, many states have passed new leave laws that do not expire when the FFCRA expires. In addition, many schools have voluntarily provided more flexible leave accrual and use policies in response to the COVID-19 pandemic. Be sure to review policies to ensure compliance with any new state laws and clarify whether more lenient leave policies will continue into the next school year.
Political Activity Policies:
The 2020 election cycle proved to be challenging and divisive. Many schools saw the friction of the 2020 election play out within their own communities. Schools should consider adopting policies to address political activity, expressions, opinions, and engagement. While employees and students may want to engage in certain types of political expression, schools should clearly communicate guidance for participation. Consider such issues as participation in political activities during work hours, displaying campaign materials on campus, and use of the school’s name or logo or otherwise representing that the employee or student is authorized to speak on behalf of the school. Employees and students must understand that while they can become involved in political activity and express their beliefs, they must be mindful that their actions reflect on the school. Faculty, in particular, should be provided with guidance as to the school’s pedagogy on engagement in political discourse in the classroom.
The Black Lives Matter movement has prompted independent schools to review their strategic initiatives for diversity, equity, and inclusion. While independent schools may already have policies against harassment and discrimination, some schools may be considering implementing policies that go beyond prohibiting discrimination to address anti-bias and anti-racism. Members of the school community have responded in varying ways to such initiatives. Schools that do so will want to ensure that their policies provide students and employees alike with clear avenues for raising concerns and a framework for the school’s response. Be mindful to develop such policies with input from various stakeholders within the school community.
Federal and State Law Updates:
Any handbook update must include a careful review of federal and state laws that may have changed since the last review. With a new administration, we may anticipate changes to National Labor Relation Board (NLRB) guidance, paid leave laws, and more. Many states have implemented COVID-19 health and safety requirements, including rules regarding travel and quarantine. In addition, many states have new laws regarding sexual abuse reporting and investigations, paid leave, minimum wage, background checks, and medical and recreational marijuana. Independent schools are encouraged to work with legal counsel to ensure compliance with rapidly changing legal updates on the federal, state, and local levels.
PPP Loans and Federal Non-Discrimination Obligations:
Schools that accepted Paycheck Protection Program (PPP) loans were required to implement policies to address federal non-discrimination obligations, including those mandated by Title IX. Once the PPP loan is repaid or forgiven, such schools will no longer be required to comply with these federal non-discrimination obligations. Schools that continue to carry the PPP loan should ensure they have such policies in place, and schools that have received forgiveness should ensure they have removed such policies.
The Venable Independent School Law team will continue to monitor the latest developments. If you have any questions please contact Caryn G. Pass, Grace H. Lee, Janice P. Gregerson, or Ashley E. Sykes.