For most independent schools, the 2020-2021 school year has finally come to a close. While we hope that administrators and staff take a well-deserved rest after a particularly challenging year, schools would be wise to take time over the summer months to plan ahead for the upcoming school year. Below are some key issues that independent schools should consider for the upcoming school year.
Employee and Student Handbook Updates
Summer is an excellent time to update your employee and student handbooks. As a general matter, it is a good idea to review your existing employee and student policies to ensure that they reflect the school's current practices. If they don't, consider what you want your policies to be and update your written policies accordingly. Additionally, pay particular attention to the following policies and issues.
- 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. With the availability of the COVID-19 vaccine, independent schools should strongly consider updating their policies to require employees to receive the vaccine as soon as possible, subject to religious or medical exemptions as required by applicable laws. As an additional safety measure, many independent schools are implementing COVID-19 testing requirements and/or requiring flu shots, which should also be reflected in the employee handbook if the school intends to include such protocols in the next school year.
Even with the COVID-19 vaccine, many safety measures, like wearing masks, social distancing, daily health screenings, quarantine requirements, infectious disease policies, and policies regarding travel and activities outside of school will likely remain in place, perhaps in modified form. Such policies should be reviewed and updated as necessary to comply with CDC, state, and local health and safety guidance for the 2021-2022 school year. Schools should clarify that such policies are subject to change in response to ongoing developments and ensure that such policies continue to include language delineating the assumption of risk.
- Anti-Bias Policies: 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 Title VII policies against harassment and discrimination, schools may consider including policies to set forth the school's anti-bias and anti-discrimination policies in their handbooks to ensure that students and employees alike have clear avenues for raising concerns, and provide transparency and consistency regarding how the school will respond to and/or investigate such concerns. These policies should be developed 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 NLRB guidance, paid leave laws, independent contractor classifications, 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.
- Title IX Policies: Schools that accepted PPP loans should have implemented policies to address federal non-discrimination obligations under Title IX. Title IX compliance falls away once the loan is repaid or forgiven, so schools should be prepared to remove such policies from handbooks once their compliance obligations end.
- 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 political activity 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 back 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.
In 2020, many schools found themselves onboarding a number of new employees very quickly to fill new classroom monitor and proctor positions to help to facilitate their hybrid learning plans. But in the haste to fill these positions last summer, it is possible that these new hires did not fully complete the school's onboarding process, or that the onboarding process was applied inconsistently across all new hires. This could expose the school to liability for negligent hiring, should an issue arise with one of these employees in the future. Schools should consider auditing the new hire documentation of those new employees to ensure that the school complied with state background screening requirements, that reference checks were completed for each new hire, and that all parts of the school's onboarding process were followed.
At the same time, schools should use the summer months to revisit the school's interview and hiring process to reduce the school's risk moving forward. To avoid liability for discrimination claims, review your interview questions to ensure that they are appropriate and do not inquire unnecessarily into applicants' protected characteristics. For example, avoid asking about an applicant's family or plans to have a family in the future, their age, citizenship status, religious affiliation, or medical conditions.
Key to the onboarding process is a full and complete background check of potential hires. A background check should consist of more than simply a criminal background check; it should also include a check of the applicable state child abuse and sex offender registries; federal, state, and local court records searches (including federal fingerprint-based checks, if required by applicable law); education and employment reference checks; state licensing checks; driving history; drug tests; and even social media searches. Many states have implemented minimum standards for background checks of individuals applying to positions with direct contact with children, which cover many of these requirements, but schools should not limit their background screening programs to such minimum standards and should instead work with their background screening program to devise a program that collects all relevant information regarding prospective summer camp employees.
If your school does not already do so, consider engaging a third-party consumer reporting agency (CRA) to run its pre-employment background checks. CRAs have access to national databases of criminal records, civil records, and other information regarding applicants for employment to provide a broader picture of each applicant's background than a single fingerprint-based criminal history check. Additionally, the breadth of information that CRAs are able to compile allows them to cross-reference criminal history information to ensure that the school is receiving the most accurate and up-to-date information available, further reducing the school's legal risk during the hiring process.
Although criminal histories are the foundation of a pre-employment background screening program, criminal history reports will not always identify applicants who have problematic histories working with children. For example, conduct or behavior of individuals with boundaries issues with children in the past usually does not rise to the level of a criminal violation. Therefore, it is equally important that schools collect applicants' employment references and follow up with every reference provided to obtain information regarding the applicant's work experience, disciplinary issues, the reason why the individual left their previous position, and whether the individual is eligible for rehire. Finally, it is okay to be direct when conducting a reference check—consider asking references specifically whether they have any concerns about the applicant working with children.
Training New and Current Employees
In the frenzy to open school during a pandemic, many schools skipped annual orientation and training last summer. This school year, schools can get back on track to provide training on the school's policies, procedures, and job duties. In addition to being trained on their specific job duties, it is imperative for school staff to receive training on the school's policies regarding discrimination, harassment, and retaliation; appropriate boundaries with students; mandated reporting; and professionalism in the workplace.
In light of increasing incidents of interpersonal misconduct both on-campus and online, discrimination, harassment, and retaliation training is key to helping employees identify instances of discrimination, harassment, and retaliation, among both employees and students, as are the school's procedures for reporting such conduct. Holding discrimination and harassment training annually is advantageous for schools, as it provides a partial affirmative defense for the school in the event of a legal claim down the road.
In addition to discrimination, harassment, and retaliation training, it is imperative for staff to receive training on the school's policies regarding appropriate boundaries with children, including the use of personal devices to communicate with students, explanations of what constitutes inappropriate conduct and grooming behaviors, and examples of appropriate interactions with students. Staff training should also address and explain the school's mandatory reporting obligations with regard to allegations of child abuse and/or neglect, as well as the school's procedures for reporting such allegations.
These are just some of the legal considerations schools should take into account as they prepare for the 2021-2022 school year. Clear policies, consistent practices, transparency, and communication will help the school make the most of this coming school year while mitigating risks and potentially avoid legal claims.