Porzio's Education Law - Year in Review: 2020 Edition

Education Law A Year in Review 2020 Edition

This year, our Year in Review contains an extensive compilation of articles on educational, COVID-19, and workplace issues. We recommend Districts tune into Porzio’s updates for the latest changes and review their policies and practices to ensure compliance with all federal, state, and local laws. If you have any questions or we can otherwise help in any way, please feel free to reach out to a member of the Education Law Team.

Contents Accommodation Requests • •

Implementing Workplace Accommodations During COVID-19: What Employers Do and Don’t Have to Do 4 Returning to Work Amid COVID-19: What Employers Should Know About Assessing And Accommodating At-Risk Employees 7

Athletic Competition •

Indoor and Outdoor Competitions Restricted, and Interstate Indoor Sport Competitions Banned Due to Rising COVID-19 Infections 9

Back-to-School Guidance • • • • • • •

Employers Contemplating Compulsory COVID-19 Vaccination Policies: Choice or Mandate?

10 DOL Releases New Back-to-School FFCRA Guidance 14 Clear Health Requirements for Schools on COVID-19 Scenarios 17 A New Path on the Road Back: Schools Must Offer Full-Time Remote Learning 18 Employers Should Plan Proactively to Address the Increased Risk of COVID-Related Claims Under The Conscientious Employee Protection Act 20 Schools May Conduct In-Person Summer Learning: The Latest Guidance from the DOE 23 Planning for Reopening: Considerations for Schools 24

Executive Orders •

All New Jersey Employers Must Comply With Latest COVID-19 Executive Order

Graduation •

NJ Lifts Stay-At-Home Order: What Does it Mean for Graduation?

Leave Entitlement • •

New Jersey Expands Leave and Insurance Benefits To Employees Impacted by COVID-19 The Fate of the FFCRA: Mandatory Paid Leave For Employees Impacted By COVID-19 Will Become Voluntary In 2021 Under The Consolidated Appropriations Act

OPMA •

New Requirements for Public Meetings During a State of Emergency

28

29

30 33

34

Special Education •

Emergency Planning for Students with Disabilities 35

Grading and Placement •

Liability For Educational Decisions: Student Grading and Placement in the Age Of COVID-19

Student Records •

New Procedures, Same Old FERPA: How the Return to School Impacts Student Records

37

40

4

Implementing Workplace Accommodations During COVID-19: What Employers Do and Don’t Have to Do Employment Law Monthly – September 2020 Authored by Janelle Edwards-Stewart Employers have known for some time the necessity of providing reasonable accommodations to employees with disabilities. For most employers, since the establishment of the Americans with Disabilities Act (“ADA”) in 1990, providing these accommodations has become routine, if not simple. As a result, “accommodations” and “individuals with disabilities” have come to fit together like the proverbial “lock” and “key.”

This has changed in the era of COVID-19. Accommodations are no longer exceptional arrangements made to assist a handful of workers with disabilities. With fears of COVID-19 looming large, droves of employees, disabled and non-disabled alike, have been seeking accommodations, most often in the form of remote work, in order to isolate from others. As a result, in some workplaces, accommodations are exceptions that have begun to rival the rule. Typical office settings long have adapted to a majority of workers working remotely. However, for businesses and organizations whose work requires employees to be onsite primarily, the recent surge in requests for remote work accommodation is proving a substantial impediment to resuming operations. When faced with record numbers of accommodation requests and/or when attempting to resume onsite operations while a significant proportion of employees seek to remain offsite, what is an employer to do?

1. DO KNOW AND OBEY THE LAW. Employees with Disabilities The ADA applies to employers with over 15 employees and prohibits discrimination against individuals with disabilities. A disability is defined as a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment. When an employee with a disability makes his/her need for a reasonable accommodation known to the employer (unless the need is obvious), the employer should engage the employee in the interactive process to arrive at a reasonable accommodation that will permit the employee to perform his/her essential job functions.

In the era of COVID-19, the process for arriving at a reasonable accommodation has not changed. The employer still must recognize the accommodation request, then appropriately solicit information to determine whether an employee has a disability.1 If it is established that an employee has a disability, the employer must explore possible accommodations with the employee, implement, and then monitor the chosen accommodation.

What has changed during the pandemic is the volume and type of accommodation requests many employers are receiving, as well as the status of the requestor. At this time, many employers are fielding more accommodation requests than ever before; a large proportion of the requests seek remote work or leave; and a large proportion of the requests, a majority in many instances, are from non-disabled employees. Must these non-disabled employees be accommodated as well?

2. DO LEARN AND IMPLEMENT THE GUIDANCE, TO THE EXTENT PRACTICABLE. While employers must provide reasonable accommodations to employees with disabilities, the Equal Employment Opportunity Commission (“EEOC”) has “encouraged” employers to “be creative” and to offer “accommodation and flexibilities” to non-disabled persons who the Centers for Disease Control (“CDC”) has determined “to be at higher [or increased] risk” of severe illness2 in the event they contract COVID-19 as well as non-disabled persons who the CDC has determined “might be at higher [or increased] risk” of severe illness in the event they contract COVID-19.

5

What has changed during the pandemic is the volume and type of accommodation requests many employers are receiving, as well as the status of the requester.

6 Employees at “Higher” or “Increased” Risk The CDC has determined that persons age 65 and over and/or persons with any of the following underlying medical conditions are at higher or increased risk:3 • Cancer; • Chronic kidney disease; • COPD (chronic obstructive pulmonary disease); • Immunocompromised state(weakened immune system) from solid organ transplant; • Obesity (body mass index “BMI” of 30 or higher); • Serious heart conditions, such as failure, coronary artery disease, or cardiomyopathies; • Sickle cell disease; and • Type 2 diabetes mellitus.

While the CDC has deemed individuals age 65 and over to be at higher risk for a severe case of COVID-19, employers must be mindful.

While they are free to provide accommodation and flexibility to workers age 65 and over — even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison — they may not go so far as to involuntarily exclude an individual from the workplace based on his or her being 65 or older, even for the benevolent purpose of protecting the individual due to his/her higher risk. At the same time, neither the ADA nor the Age Discrimination in Employment Act (“ADEA”) include a right to a reasonable accommodation for older workers due to age. Put plainly, the EEOC encourages “maximum flexibilities” for this group of at-risk workers.

It encourages accommodation and, seemingly standard, flexibility for all others at-risk.

Employees Who Might be at “Higher” or “Increased” Risk The CDC has determined that smokers, as well as persons with the following underlying medical conditions, might be at higher or increased risk:4 • • • • •

• • • • • •

Asthma (moderate-to-severe); Cerebrovascular disease (affects blood vessels and blood supply to the brain); Cystic fibrosis; Hypertension or high blood pressure; Immunocompromised state (weakened immune system) from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines; Neurologic conditions, such as dementia; Liver disease; Pregnancy; Pulmonary fibrosis (having damaged or scarred lung tissues); Thalassemia (a type of blood disorder); and Type 1 diabetes mellitus.

The EEOC’s encouragement is similar here. Employers who are able should be flexible in attempting to accommodate employees who might be at higher risk.

3. DO NOT FEEL COMPELLED TO IMPLEMENT EVERY ACCOMMODATION REQUESTED, PARTICULARLY WHERE THERE IS AN UNDUE HARDSHIP. Although popular, remote work is just one of many possible accommodations employers can consider, since employees have no entitlement to any specific accommodation. Employers, thus, are encouraged to review an array of accommodations, including additional or enhanced protective gowns, masks, gloves, or other gear. Possible accommodations also may include additional or enhanced protective measures, such as erecting a barrier that provides separation between employees or an employee and the public. Another possible accommodation may be the elimination or substitution of certain “marginal” functions (i.e., incidental job duties, as distinguished from the “essential” functions of a particular position). Accommodations also may include temporary modification of work schedules or physical relocation to a more remote area within the facility.

7 Notwithstanding the broad array of available accommodations, it still is the case that an employer need not accommodate a nondisabled employee or provide an accommodation that poses an “undue hardship.” Factors considered in determining undue hardship include the following: • • • • • •

the nature and cost of the accommodation needed; the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and the impact of the accommodation on the operation of the facility.

This always must be a careful and individualized assessment.

TAKE AWAY: In the broader analysis, what has emerged from a review of relevant anti-discrimination laws and health-related guidance is something approaching a tiered system of accommodation. Federal statute continues to compel employers to provide reasonable accommodations to disabled employees. Meanwhile, federal agency guidance recommends that employers treat employees, who are and who may be particularly vulnerable to COVID-19, similar to disabled employees, to the extent the employer is able. Neither disabled nor non-disabled employees are entitled to a specific accommodation nor one that presents an undue hardship.

1

A COVID-19 diagnosis is not, in and of itself, a disability, giving entitlement to reasonable accommodation. Rather, the disability determination associated with a COVID-19 diagnoses will depend

on the severity of the employee’s symptoms. If medical information and/or response to inquiry indicate a severe COVID-19 experience, the employee should be deemed to have a disability warranting reasonable accommodation.

2

The CDC has explained that severe illness means that the person with COVID-19 may require hospitalization, intensive care, or a ventilator to help them breathe, or they may even die.

3

This CDC list is current as of September 2, 2020 (list last revised by CDC on July 17, 2020).

4

This CDC list is current as of September 2, 2020 (list last revised by CDC on July 17, 2020).

Returning to Work Amid COVID-19: What Employers Should Know About Assessing And Accommodating At-Risk Employees Employment Law Monthly - July 2020 Authored by Melanie D. Lipomanis By now, employers are well-informed that employees with underlying health conditions are at greater risk for developing serious medical complications if they contract COVID-19, and that these employees’ medical conditions might warrant accommodations when returning to work under the Americans With Disabilities Act (ADA) and state anti-discrimination laws. Employers need to be prepared when their doors re-open to accommodate these employees and implement policy to safeguard their operations from potential lawsuits.

The Centers for Disease Control and Prevention has identified the following underlying medical conditions that place an employee in the at-risk category: (1) age (65 and over; (2) severe obesity; (3) asthma; (4) heart conditions; (5) diabetes; (6) kidney or liver disease; and (7) an immunocompromised condition caused by a variety of factors, including cancer treatment, smoking, and certain immune weakening drug therapies and medical conditions. The broad scope of identified underlying medical conditions means most employers will face the dilemma of handling at-risk employees returning to work as businesses reopen and resume operations.

8 In May, the Equal Employment Opportunity Commission (EEOC), issued guidance for employers for at-risk employees. The guidance provides that if an employee does not request an accommodation for his or her medical condition upon returning to work, “the ADA does not mandate that the employer take action.” However, an employer cannot remove an employee from the workplace based on knowledge of the underlying medical conditions. The ADA expressly precludes an employer from excluding an employee from the workplace, or taking any other adverse action, based solely upon the employee’s known underlying medical condition, unless the employer determines the condition poses a “direct threat” to the employee’s health “that cannot be eliminated or reduced by reasonable accommodation.” The “direct threat” is an affirmative defense under the ADA and, as the EEOC cautions, it is a high standard to meet.

Once an employee has self-identified as having an underlying medical condition, and we caution employers from acting on any perceived condition absent the employee’s request for accommodation, the employer must perform a “direct threat analysis” to determine if an at-risk employee’s health would be endangered upon returning to work. The analysis must include an “individualized assessment based on a reasonable medical judgment” regarding the employee’s underlying condition and whether a reasonable accommodation can mitigate risk to the employee. For an at-risk employee returning to work amid COVID-19, a direct threat means “significant risk of substantial harm” to the employee’s own health from exposure to others. In conducting this multi-step analysis, an employer should “consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.” Where the employee’s underlying medical condition is not obvious or already known, an employer may ask for additional information or request medical documentation from the employee’s medical provider to determine whether the employee’s medical condition necessitates an accommodation, either the one he or she requested or any other.

An employer can consider additional factors when conducting a direct threat analysis: (1) the prominence of COVID-19 infection in the geographical area; (2) the nature of the employee’s essential job duties; (3) frequency of exposure to others in performing those duties; and (4) how well the employee’s underlying health condition is managed.

Even where an employer determines a direct threat to an employee exists, it may not exclude the individual from the workplace or take any other adverse action against the employee unless it determines no reasonable accommodations can be offered to the employee that do not pose an undue hardship on the business.

We recommend employers engage in the interactive process with an employee with a known underlying medical condition in performing its individualized assessment of the risk posed to the employee for COVID-19 exposure. The EEOC advises that employers may implement reasonable accommodations in the workplace such as erecting physical barriers or moving the employee’s work station, providing personal protective equipment, modifications to work schedules, telecommuting, or eliminating or reducing marginal job duties, to limit exposure to the employee.

9

Indoor and Outdoor Competitions Restricted, and Interstate Indoor Sport Competitions Banned Due to Rising COVID-19 Infections Client Alert – November 2020 Authored by Matthew J. Donohue On November 16, 2020, Governor Philip Murphy signed Executive Order #196 which, limits indoor and outdoor “gatherings” to ten (10) and one hundred fifty (150) people, respectively. “Gatherings” now specifically include both indoor and outdoor sports competitions and practices, although Order #196 includes exceptions for indoor sports. The new indoor gathering limitations are effective immediately while schools will have additional time to implement the latest outdoor gathering restrictions, but must do so no later than November 23 at 6:00 a.m. These new requirements, as well as Executive Order #194 banning all interstate indoor sport competitions and the New Jersey State Interscholastic Athletic Association (“NJSIAA”) update on Winter/”Season 2” sports, are a result of the increasing COVID-19 infections occurring throughout New Jersey as of the date of the writing. For an in-depth breakdown and analysis of the NJSIAA update, and Executive Orders #194 and #196, please see below.

Pursuant to Executive Order #194, all interstate indoor youth sports competitions – which includes any game, scrimmage, or tournament – are suspended throughout the State of New Jersey, effective November 12, 2020. This includes school-based, club, and recreational programs hosted within New Jersey or where a New Jersey team travels to any other state, including New York, Delaware and Connecticut. On the other hand, intrastate competitions (i.e., competitions between teams located in New Jersey) and indoor practices had remained unaffected by Executive Order #194.

While it is unlikely many schools were planning interstate competitions given the current surge of COVID-19 infections, Executive Order #196 impacts all intrastate professional, collegiate, youth, and school indoor and outdoor sporting activities. All youth and school outdoor sporting activities, including practices and competitions, shall be limited to one hundred fifty (150) individuals. Unlike professional and collegiate outdoor sports, schools are required to include all individuals participating in the outdoor sporting event (e.g., athletes, coaches, referees, trainers, etc.) as well as spectators in evaluating safety protocols. Depending on the circumstances, indoor youth and school sporting activities are capped at either ten (10) individuals or 25% of the room’s capacity. If the number of individuals who are necessary for a no-contact practice, contact practice, or competition is equal to or greater than ten (10) people, such a practice or competition can only occur if “no individuals are present who are not necessary for the practice or competition, such as spectators.” Otherwise, the practice or competition must occur with ten (10) or fewer individuals, including players and coaches. Violations of either Executive Order #194 or #196 shall be considered a disorderly persons offense, and violators are subject to imprisonment up to six (6) months and/or a fine not to exceed $1,000.00.

10

On November 19, 2020, the NJSIAA released an update that except for Ice Hockey practice, all winter sport competitions and practices for Basketball, Fencing, Bowling, Swimming, Winter Track & Field, Gymnastics, Volleyball and Wrestling are being delayed until 2021.

Below please find the full list of dates:

Generally, all winter sports shall be restricted to one (1) pre-season scrimmage, and post-season NJSIAA-sponsored competitions (e. g. county, regionals, state, etc.) are cancelled. During the regular season, certain sports (e.g., basketball, fencing) are prohibited from conducting multi-team, multi-game and invitational events. The NJSIAA reserved the right to alter these restrictions at any time. For your convenience, a full copy of the November 19th update can be accessed here.

Executive Order #196 is silent in regards to which individual in a school district would be liable in the event either an outdoor or indoor competition or practice exceeds the aforementioned limits. However, schools must ensure that all sporting events, including nonNJSIAA sponsored events and traditional Thanksgiving high school football games, are compliant with these Orders. Should you have any questions regarding these restrictions, the Porzio team would be happy to assist.

Employers Contemplating Compulsory COVID-19 Vaccination Policies: Choice or Mandate?

Employment Law Monthly - October 2020 Authored by Kerri A. Wright & Melanie D. Lipomanis An effective vaccine could protect our populations from the devastating social and economic effects of COVID-19 spread, and allow employers to operate at full capacity. However, experts agree that the efficacy of any vaccine likely will require the majority of us to be inoculated before we see the rates of infection reach de minimus levels. This condition will apply equally to an employer’s workforce.

According to a survey conducted in August 2020,1 35% of Americans surveyed said they decidedly would not get a vaccine when one becomes available. That rate climbs to 41% among parents with children under 18. A more recent survey conducted in September 2020 indicates that number is now at 49%.2 So how do we move toward a fully functioning society, including restoring robust business operations, when such a large number of individuals may be unwilling to be inoculated? That is the question many public and private employers, school districts, colleges and universities are beginning to contemplate as we inch closer to an effective means of disease prevention.

11 While the Coronavirus may be novel, the issue of mandated vaccination is not. In a case dating back to 1905, the Supreme Court addressed mandatory vaccinations in regard to a smallpox outbreak Massachusetts. In Jacobson v Massachusetts,3 Jacobson objected to a regulation requiring compulsory vaccinations, arguing it was in “derogation of the rights secured to the defendant by the 14th Amendment of the Constitution of the United States . . . providing that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law . . . .” Rejecting this argument, the Court ruled that a State law requiring compulsory vaccination of citizens to eradicate disease was a proper exercise of the legislative prerogative to protect the public health, finding “the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”4 Drawing on the logic from then existing school immunization mandates, the Court held that such regulations do not violate the 14th Amendment right to liberty because they fall within all kinds of restraints to which every person is necessarily subjected for the common good, and that real liberty for all could not exist if each individual is allowed to act without regard to the injury that his or her actions might cause others. The holding in Jacobson has since been a staple of public health law and, as a result, compulsory vaccinations remain a valid exercise of State power.

State-mandated vaccination laws have been on the books for the past century and although we generally think of them as applying to children attending day care facilities, and public and private schools, many states have enacted laws requiring immunization of certain groups of people such as healthcare workers, patients, and residents of long-term care facilities.

Generally Recognized Exemptions Because much of the law and jurisprudence regarding mandated vaccinations revolve around the inoculation of students, we generally look to that body of law for guidance on potential exemptions. According to the National Conference of State Legislators (NCSL), all states allow exemptions for medical reasons, 45 states and the District of Columbia have a religious exemption law, and 17 of those states have philosophical exemption laws allowing parents to claim an exemption based on their personal, moral or other beliefs.5

Perhaps the most controversial exemptions to compulsory vaccination laws are those for religious and philosophical reasons. A few states have eliminated these exemptions altogether due to infectious disease outbreaks in recent years, namely measles.6 Courts have upheld state legislative enactment of laws eliminating these exemptions on the grounds that, although compulsory vaccination may burden religious practices, such laws do not violate the First Amendment’s free exercise clause because the laws do not single out religion nor are they motivated by a purpose to interfere with an individual’s sincerely held religious beliefs.

Notably, there has been a sea-change in public attitude toward vaccination exemptions following the catastrophic effects of COVID-19 as it spreads across the country. By way of example, on May 13, 2020, the New York State Bar Association’s Health Law Section Task Force on COVID-19 issued an 83-page report and recommendations on dealing with various aspects of the pandemic.7 The report states that, although “some Americans may push back on the COVID-19 vaccination for religious, philosophical or personal reasons,” “for the sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available.”

In support of its position, the Bar notes “Constitutional challenges under the religious freedom clause under the First Amendment and

12 under the substantive due process clause of the Fourteenth Amendment have failed, when the individual interests are not strong enough to outweigh the public benefit.” The report concludes that the “gravity of COVID-19 presents compelling justification for State legislatures and Congress to mandate a COVID-19 vaccination.”

With this backdrop, it is not inconceivable that compulsory vaccinations may be on the horizon at the state or even federal level.

At a minimum, we would expect to see legislation regarding certain sectors with high risk populations such as healthcare workers, employees and residents of elder-care facilities, school districts, universities, and perhaps even employees in the retail and food service sectors.

Navigating Potential Accommodations in the Employment Context While a fully inoculated workforce is ideal, absent federal or state laws mandating inoculation, whether for all citizens or specific sectors and employee groups, employers only can go so far in implementing compulsory vaccination policies. Employers need to be mindful of existing federal and state laws that may be implicated when implementing such policies. Public employers may face greater challenges in implementing a vaccination policy based upon employees’ constitutional rights.

The Equal Employment Opportunity Commission (EEOC) has not issued new guidance on a COVID-19 vaccine, however, employers can reasonably rely on the EEOC’s guidance regarding the flu vaccine. That guidance was issued on March 21, 2020,8 in which the EEOC specifically addressed the issue of whether employers covered by the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) may require employees to be inoculated for the influenza virus. According to the EEOC, an employee may be entitled to an exemption from an employer’s mandatory vaccination policy under the ADA based on a disability that prevents the employee from being vaccinated for medical reasons. In that case, an employer would be required to grant a reasonable accommodation unless it would result in undue hardship to the business. Under the ADA, “undue hardship” is defined as “significant difficulty or expense” in providing the accommodation.

An employer also may be required to provide a reasonable accommodation for an employee’s sincerely held religious belief, practice, or observance under Title VII if such belief prevents the employee from being inoculated and providing the accommodation would not pose an undue hardship on the employer. Undue hardship is a lower bar in Title VII cases and requires only a showing of more than a de minimis cost to the employer. Employers should be cognizant of parallel state laws that may impose stricter standards to show that an accommodation would pose an undue hardship on the employer.

In addition to the EEOC guidance, in 2009 the U.S. Occupational Safety and Health Administration (OSHA) took a position during the H1N1 pandemic that employers may require employees to submit to influenza vaccines, providing that employees are properly informed of the benefits of vaccinations.9 OSHA cautioned, however, that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”

Take Away In the private sector, an employer may implement a policy mandating its workforce be inoculated once a safe and effective vaccine becomes available. Although the policy should be uniformly applied, the employer will need to consider exceptions to the mandate, on a case-by-case basis, for an employee’s medical condition or his or her sincerely held religious beliefs. In the public sector, absent specific statutory authorization, employers need to proceed with more caution before considering such a mandated policy, as such a policy may run afoul of the constitutional rights of employees.

1

https://news.gallup.com/poll/317018/one-three-americans-not-covid-vaccine.aspx

2

https://www.pewresearch.org/science/2020/09/17/u-s-public-now-divided-over-whether-to-get-covid-19-vaccine/

3

197 US 11 (1905).

4

Id. at 88.

5

https://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx

6

New York, California, Mississippi, and West Virginia.

7

https://nysba.org/app/uploads/2020/05/HealthLawSectionTaskForceCOVID-19Report_5.13.20-1.pdf

8

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

9

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

13

Employers need to be mindful of existing federal and state laws that may be implicated when implementing such policies. Public employers may face greater challenges in implementing a vaccination policy based upon employees’ constitutional rights.

14

DOL Releases New Back-to-School FFCRA Guidance Employment Law Monthly - September 2020 Authored by Kerri A. Wright & Thomas J. Reilly On August 27, 2020, the U.S. Department of Labor released new guidance regarding the Families First Coronavirus Response Act (FFCRA) in a question and answer format. The guidance was released to address various questions regarding teleworking, remote learning, and other issues that are sure to surface as schools open throughout the country.

School Closures The guidance confirms that a child’s school or place of care is “closed” for purposes of the FFCRA if it has moved completely to distance or virtual learning and the “physical location” is closed. For schools that create “hybrid” programs whereby the school is open on certain days, and virtual learning takes place on other days, an employee is “eligible to take paid leave under the FFCRA [only] on days when [the employee’s] child is not permitted to attend school in person and must instead engage in remote learning.”

Schools that give parents the option of having their children either physically attend school or engage in remote learning are not considered “closed” for purposes of the FFCRA. So long as the child has the option of physically attending school, the school is “open” and an employee cannot take expanded family leave to care for that child. If the school currently is under a remote learning program but may later reopen for physical attendance, the school is considered “closed” for FFCRA purposes unless and until it permits in-person instruction.

Additionally, employees cannot take family leave to care for a child whose school has closed if that child is over the age of 18, unless the child has a disability and cannot care for him or herself due to that disability.

Leave Under Existing Policies An employer may not require employer-provided paid leave to run concurrently with — that is, cover the same hours as — paid sick leave under the Emergency Paid Sick Leave Act. However, the guidance states that employers may require employees to take paid leave under an existing paid leave policy concurrent with expanded family leave under the EFMLEA “[a] fter the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA.” In other words, for an employee who is taking expanded family leave for the closure of a school or childcare provider, the employer is limited to the following: 1. First two weeks: Cannot run other paid leave concurrently.

2. Remaining ten weeks: May run other paid leave concurrently.

However, the employer cannot require the employee to use medical or sick leave under an employer policy if the employee (or covered family member) is not ill. Under this guidance, it would be permissible to require the employee to use available vacation or PTO days for this remaining ten weeks of leave.

Employees With COVID-19 Symptoms The Department of Labor also provided guidance on employees who “self-diagnose.” The guidance provides that employees “may

15 not take paid sick leave under the FFCRA if [they] unilaterally decide to self-quarantine for an illness without medical advice, even if [they] have COVID-19 symptoms.�

The guidance also confirms that employees are not permitted to take paid sick leave under the FFCRA if they become ill with an illness not related to COVID-19. However, many states, including New Jersey, New York and Massachusetts, provide paid sick leave that would cover other non-COVID illnesses.

In cases where an employee is returning from leave, an employer might have concerns that the employee has been exposed to COVID-19 and potentially could infect other employees. In general, an employee returning from paid sick leave under FFCRA has a right to be restored to the same or an equivalent position. However, where the employer has a legitimate fear of COVID-19 exposure, the employer may temporarily reinstate the employee to an equivalent position requiring less interaction with co-workers, or require that the employee telework. An employer also may require any employee who knows he or she has interacted with a COVID-infected person to telework or take leave until the employee personally has tested negative for COVID-19 infection. However, the employer may not require the employee to telework or be tested for COVID-19 simply because the employee took leave under the FFCRA. Therefore, it appears that an employer must be able to point to additional information suggesting COVID exposure and would be wise to document that additional information if the employer takes any action other than reinstating the employee to his or her prior position.

Whenever an employee requests leave, the employer must keep a record of the following items: 1.

2.

3.

4.

the name of the employee requesting leave; the date(s) for which leave is requested; the reason for leave; and a statement from the employee that he or she is unable to work because of the reason.

If an employee requests leave due to a quarantine order from a government entity or on the recommendation of a medical professional to self-quarantine, the employer should document the name of the government entity and/or medical provider.

If an employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, the employer must also document the following: 1. the name of the child being cared for; 2. the name of the school, place of care, or child care provider that has closed or become unavailable; and 3. a statement from the employee that no other suitable person is available to care for the child.

Employees requesting leave are required to provide all of the information listed above. Additionally, employees who claim to have symptoms of COVID-19 and are taking leave to obtain a diagnosis may be required by the employer to provide a list of symptoms and the date on which a test or medical exam will take place.

Relation to Other Forms of Leave The guidance makes it clear that expanded family leave is FMLA leave. If an employer was covered by the FMLA prior to April 1, 2020, an employee’s eligibility for expanded family leave depends on how much leave the employee already had taken during the 12-month period that the employer uses for calculating available FMLA leave. An employee may take 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If an employee has taken some, but not all, of the 12 workweeks of leave available under FMLA during the current 12-month period determined by the employer, the employee may take the remaining portion of leave available. If the employee already has taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take additional expanded family and medical leave.

16

In general, an employee may not take FFCRA leave if the employee is receiving workers’ compensation or temporary disability benefits, unless the employee returned to light duty before taking leave. An employee also is not permitted to take FFCRA leave if the employee is on a mandatory leave of absence. However, the employer may end a voluntary leave of absence and begin taking paid sick leave or expanded family leave.

Intermittent Leave As schools around the country open in varying degrees, employers are faced with employees who have childcare issues because their children only are in school two or three days each week and, sometimes, only for half-days. The Department of Labor previously had advised that FFCRA leave (both sick leave as well as the expanded family leave) could be taken intermittently only if the employer were to allow it. However, a recent federal court decision out of New York struck down this provision, essentially holding that employees must be permitted to take the FFCRA leave intermittently. A more detailed discussion regarding this decision can be found in one of our previous COVID-19 resource articles.

Instead of revising its regulations to comply with this decision, it appears that the Department of Labor has doubled-down on its prior guidance. In issuing this expanded list of questions and answers, the Department of Labor again notes that an employee can take intermittent family leave or paid sick leave while teleworking, provided the “employer allows it.” The guidance also states that intermittent leave may be taken in “any increment,” provided the employer and employee agree.

The rules are quite different for employees who are physically present in the workplace. First, with regard to paid sick leave, employees physically present in the workplace must use intermittent paid sick leave only “in full day increments,” and paid sick leave cannot be taken intermittently if taken pursuant to a quarantine order, to care for someone who is either subject to a quarantine order or who was advised to self-quarantine, or where the employee has symptoms of COVID-19 or is caring for someone with symptoms. In such cases, paid sick leave must be used either until it is exhausted or the employee no longer has a qualifying reason to take paid sick leave. In contrast, employees may take paid sick leave intermittently — but again, only in full day increments — if the employee is taking paid sick leave to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. Furthermore, the employer must agree and grant permission in order for an employee to take intermittent paid sick leave.

Employees who physically are present in the workplace also are permitted to take intermittent family leave, but again, must receive the employer’s permission. The “full day increment” requirement is not mentioned with regard to family leave taken by employees who are physically present in the workplace. It is therefore unclear if this requirement applies to family leave, or only to sick leave.

Conclusion In sum, the Department of Labor’s new guidance provides important clarifications and new information regarding implementation of the FFCRA that will be important as schools continue to open throughout the country. At this point, it is recommended that you review your leave policies to ensure compliance with this recent update. The Department of Labor also may release further guidance in the next several months before the FFCRA expires at the end of the year. Porzio will continue to keep you updated in this area.

17

Clear Health Requirements for Schools on COVID-19 Scenarios Client Alert - August 2020 Authored by Matthew J. Donohue On August 13th, the DOH released “COVID-19 Public Health Recommendations for Local Health Departments for K-12 Schools,” which provides baseline recommendations for schools and local health departments to implement for the 2020-2021 academic year.

Foremost, schools will have to designate a point of contact with the local health department for the school and agency to work in tandem if a COVID-19 outbreak occurs in the school. Importantly, the School District retains the right to take unilateral action, such as closing the school, so long as the local health department is apprised. The DOH guidance contains numerous best practices and tips for disinfecting the school, handwashing, testing, and contact tracing. However, the most useful information is contained in the school closure and self-screening recommendations.

The DOH guidance outlines various scenarios (e.g., one person tests positive, two people in different classrooms test positive, etc.), and recommended school responses to each situation. For example, if one (1) student or staff member tests positive for COVID-19, the DOH recommends that the school either: • •

temporarily close for 2-5 days if a student or staff member attended school while potentially infectious prior to the confirmation of COVID-19; or remain open.

Despite the school’s decision in the previous scenario, the DOH recommends that any student or staff member who came into “close contact”1 with the COVID-19 individual be excluded from school grounds for fourteen (14) days. The school may take more stringent measures, but under no circumstances should a school refuse to follow the minimum recommendations.

The New Jersey Department of Education’s “Road Back” guidance did not contain bright-line rules on handling students or employees if they present with only one (1) or two (2) symptoms. Many schools were frustrated given the broad overlap of COVID-19 symptoms with many common illnesses. Fortunately, the DOH provided a hierarchy of the symptoms to assist schools with these difficult decisions. Students and staff should be isolated promptly from others and excluded from school if they have: • •

At least one of these symptoms: cough, shortness of breath, difficulty breathing, new olfactory disorder, or new taste disorder; or At least two of these symptoms: fever (measured at 100.4 degrees Fahrenheit or subjective), chills, rigors (shivers), myalgia (muscle aches), headache, sore throat, nausea or vomiting, diarrhea, fatigue, congestion or runny nose.

To re-iterate, schools may set more stringent rules, such as requiring an individual with one symptom to be isolated and excluded from school. However, a school would be in full compliance with the DOH guidance if a student remains in school with a runny nose or fatigue. The DOH also provides a template form for schools to utilize for self-screening students and staff members, and template letters when notifying parents/legal guardians and staff members of a positive COVID-19 occurrence in the school.

The DOH guidance is filled with a plethora of resources, templates, and much-needed clarifications on the health and safety standards first issued by the Department of Education. Click here to find a link to the full nineteen (19) page document.

Should you require any assistance with supplementing your procedures and policies to follow the DOH’s recommendations, or wish to create more stringent protections for your students and staff, the Porzio Education Law team would be happy to assist.

1 The CDC defines “close contact” as “any individual within 6 feet of an infected person for at least 15 minutes.” The DOH guidance defines “close contact” as “any individual within 6 feet of an infected person for at least 15 minutes,” which was the previous CDC definition before July 22, 2020.

18

A New Path on the Road Back: Schools Must Offer Full-Time Remote Learning Client Alert – July 2020 Authored by Matthew J. Donohue

The New Jersey Department of Education (“NJDOE”) released supplementary guidance to the 104-page “Road Back: Restart and Recovery Plan for Education,” which now requires all schools to offer all-remote/virtual instruction for students.

The “Road Back” still requires schools to offer some form of in-person instruction for the 2020-2021 academic year, but students shall have the option to receive fulltime remote learning without penalty. Parents and guardians may request full-time remote instruction for “any service or combination of services that would otherwise be delivered on an in-person or hybrid schedule, such as instruction, behavioral and support services, special education and related services,” and the school must accommodate the request. Any student participating in full-time remote learning must be afforded the same quality of education as students receiving in-person or hybrid instruction.

Schools must implement clear “policies and procedures” establishing, at a minimum: 1. deadlines for submission of requests; 2. expected timelines for approving requests; 3. information/documentation necessary for recordkeeping purposes; and 4. contact information for parents/guardians to submit questions and concerns.

For students with disabilities, schools should review the student’s IEP to determine if a meeting/amendment is necessary as a result of the full-time remote request. Once the request is granted, schools are permitted to set a minimum amount of a time a student must remain in remote learning before being eligible to transition to in-person instruction to prevent sudden changes to in-person class rosters. Schools will need to communicate these policies and procedures to the community, and report certain data to the NJDOE regarding the number of students participating in full-time remote learning. For your convenience, please find a link to the NJDOE supplemental guidance below: https://nj.gov/education/reopening/updates/docs/7.24.20%20RtR%20Fulltime%20 Remote%20Update.pdf Schools will need to take care to update their 2020-2021 academic plans, policies, and procedures to permit full-time remote learning for students. Please do not hesitate to contact us with questions you may have regarding implementation of these new requirements. Should you require any assistance to ensure your school is in compliance, we would be happy to assist.

19

Prolific guidance relating to the effects of the pandemic on every imaginable topic continues to sprout from government agencies.

20

Employers Should Plan Proactively to Address the Increased Risk of COVID-Related Claims Under The Conscientious Employee Protection Act Employment Law Monthly - June 2020 Authored by Kathryn K. Forman Employers first became aware of COVID-19’s ultimately tragic arrival in New Jersey just before the start of Spring. And, as the leaves unfurled from the trees throughout late March and early April 2020, so unfurled a forest of new laws that governs the movements of individuals and the functions of businesses in a way most New Jerseyans have never seen before. Even employers who make a good faith effort to abide by the new laws may find themselves defending claims for compensatory and punitive damages and counsel fees and costs if they do not plan for the increased risk of COVID-related allegations of violations of the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. (CEPA), which are likely to emerge as a result of this new authority.

There have been executive orders requiring people to shelter in place and dividing businesses into nonessential and essential categories; there have been emergency expansions of existing state and federal leave laws, and a new emergency federal sick leave law; there are new occupational safety and health guidelines for employers to learn and follow. Prolific guidance relating to the effects of the pandemic on every imaginable topic continues to sprout from government agencies. As everyone impacted by these directives has attempted to navigate new responsibilities and entitlements, there have been, and inevitably will be, employers and employees who find themselves at odds with one another. As a result, potential CEPA claims lurk within this new landscape. In fact, lawsuits alleging that plaintiffs were retaliated against for complaining about their employers’ early responses to the looming threat of coronavirus already are hitting the docket.

An employer (including an individual supervisor acting on behalf of the employer) may be liable for violating CEPA if an employee can show that the employer retaliated against the employee for complaining about conduct that the employee reasonably believed to violate a law, a rule or regulation promulgated pursuant to law, a clear mandate of public policy, or was fraudulent or criminal, or in the case of an employee who is a licensed or certified healthcare professional, constituted improper patient care. It is well-established that generalized grievances are not entitled to CEPA protection. Nevertheless, considering the rapid growth of authority in this area, employees searching for legal support to kindle their COVIDrelated complaints may not have to look far to find it. By way of example, the detailed guidance issued by the Occupational Safety and Health Association (OSHA) and the Center for Disease Control (CDC) may have created a new realm of protected activity.1 Pre-COVID, the possibility that an office worker could invoke CEPA by alleging retaliation resulting from a complaint about a colleague’s hygiene might have seemed absurd; now, such a complaint actually may pass muster as legally protected activity, depending on the circumstances.2 Prudent employers now will exercise extreme care in addressing such complaints.

Employees need not prove that their employer’s conduct actually violated or would have violated the law, only that they reasonably believed such a violation had occurred or was imminent. As a result, even where they have not acted illegally, employers may find themselves needing to evaluate and manage their CEPA exposure where employees may have voiced COVID-related concerns, and where independent, legitimate circumstances such as poor performance, policy violations, or an employer’s economic circumstances necessitate adverse action against such employees. A proactive approach should include the following measures:

21

Maintain a policy that directs employees to report COVID-related employee complaints to Human Resources, Compliance, or another specifically designated department or individual.

Ensure that employee reporting policies are up-to-date, well-publicized, and easy to follow. The goal of such policies is to enable employers to address COVID-related concerns as they arise, before the complained-of conduct escalates.

Be prepared to promptly investigate all COVID-related complaints, and to take remedial action in response to substantiated complaints.

Prepare in advance for investigation of COVID-related complaints. Evaluate whether all complaints, or complaints of a particularly sensitive nature, should be independently investigated by a third party, and whether the investigation should be conducted by an attorney, under privilege. Investigations should be thorough and well-documented, with clear findings as to whether a complaint was or was not substantiated, and what action was taken as a result. These investigation files should be maintained separately from employee personnel files to the extent that they might implicate the confidentiality provisions of the Americans with Disabilities Act. While it is not required by CEPA that an employer investigate or endeavor to remediate each alleged violation of law, employers are often

better-positioned to defend against retaliation claims when they are able to produce documentation demonstrating that they ensured thorough investigation of the underlying complaints and acted reasonably in accordance with the findings. Employers are encouraged to contact employment counsel to discuss strategy, the scope of the investigation, confidentiality concerns, and addressing any potentially problematic or high-risk behavior.

Train employees and supervisors on COVID precautions, anti-retaliation policies and the application of such policies to COVIDrelated employee complaints.

Train employees on the importance of following the employer’s safety measures, and make sure that all supervisors and company leaders set a clear example by following them. Supervisors should be reminded of the policy to report complaints immediately, and that COVID-related complaints should be treated as being within the anti-retaliation policy. Separately, train or re-train supervisors on implementing the employer’s policies against retaliation, reminding them to escalate any COVID-related complaints of which they become aware to the individual, unit, legal advisor, or committee assigned to investigate such complaints. The message conveyed to supervisors in connection with such training should be that all COVID-related complaints, regardless of their apparent severity, or the formality with which they are made, must be treated seriously, and as potentially legally protected communications.

Ensure consistency in measuring performance and issuing discipline.

Consistency and documentation are critical to mitigate the risk of claims that legitimate employment actions are a pretext for retaliation as the result of an employee’s COVID-related complaints.

22

To the extent practicable, standardize performance metrics, especially if they are changing as the result of the impact of COVID on the workplace. Document all circumstances where employees are excused, for COVID-related reasons, from meeting performance metrics, and ensure that such standards are applied consistently for all employees similarly impacted. Where employees are expected to continue meeting pre-COVID metrics, consistently document each instance where employees fall short, and address such failures equitably for all similarly situated employees.

Continue to adhere to any progressive discipline standards set forth in employer policies, and apply consistent discipline for similar violations. Document issues thoroughly and maintain documentation in a designated location.

Ensure objectivity in taking cost reduction measures.

As a result of the severe economic downturn resulting from COVID, many employers will need to limit certain job perquisites or take more austere measures such as layoffs, furloughs, wage reductions, and restructuring. Determinations regarding which employees will be impacted should be based on objective, quantifiable data wherever possible. Additionally, it is important that these decisions and the rationale for making each decision is well documented, this includes the rationale for each individual (if not part of a larger group by category, location, or job title).

Consult with legal counsel to plan for specific situations.

When it becomes necessary to take adverse action against an employee who may believe he or she has blown the whistle, employers must act with extreme care. Experienced legal counsel can provide guidance as to whether an employee is likely to be able to allege successfully that he or she has engaged in protected activity under CEPA, as well as whether the employer’s independent basis for taking action impacting a protected employee is likely to withstand scrutiny. Counsel further can recommend solutions for reducing exposure in various situations. **** Employers who have walked the whistleblower path before know just how costly it can be to defend against even the weakest of CEPA claims. However, by mapping careful responses to COVID-related complaints, and maintaining consistently applied objective standards and documentation, employers can position themselves to limit the increasing risk of such claims as they move forward through the new normal brought about by this pandemic.

1. Guidance on Preparing Workplaces for COVID-19, Occupational Safety and Health Administration, https://www.osha.gov/ Publications/OSHA3990.pdf; Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020, Center for Disease Control, https://www.cdc.gov/ coronavirus/2019-ncov/community/guidance-business-response. html.

2. Notably, in 2014, the New Jersey Supreme Court stdk down a CEPA claim, holding that an employee’s complaint regarding infection control and hygiene practices did not have a nexus to any cognizable source of law or public policy. See Hitesman v.

Bridgeway, 218 N.J. 8 (2014). There, the court expressly noted that the plaintiff did not demonstrate, at trial, that his complaints had invoked CDC standards. Hitesman, 218 N.J. at 39-41. In light of this decision, the facts and circumstances of any such employee complaints, and whether they were sufficient to put the employer on notice of any CDC or OSHA violations, likely will be determinative.

23

Schools May Conduct In-Person Summer Learning: The Latest Guidance from the DOE Client Alert - June 2020 Authored by Matthew J. Donohue The Department of Education has released guidance1 for schools to conduct summer educational programing, including in-person instruction, which can begin on or after July 6, 2020. Permissible summer programming includes educational programs run by school districts (e.g., public schools, renaissance schools, and charter schools) as well as receiving schools’ programs, such as Extended School Year (“ESY”) programs, traditional credit recovery, and migrant education. In-person instruction must adhere to Governor Murphy’s Executive Orders, and the New Jersey Department of Health’s COVID-19 Youth Summer Camp Standards,2 which requires schools to: • train students and staff on basic principles of emergency first aid, blood borne pathogens, infection control, hand washing practices, personal protective equipment, and COVID-19 symptoms; • implement screening and admittance procedures for staff and students; • require mandatory cloth face coverings for all individuals over two (2) years of age when social distancing cannot be adhered to; • implement prevention and mitigation strategies to slow and limit COVID-19 exposure; and • update policies and procedures related to COVID-19 (e.g., cleaning and disinfection policies)3.

One of the key takeaways from the DOE guidance is that school districts and receiving schools are not required to conduct in-person instruction if either the school district or the receiving school concludes the educational program does not meet all of the New Jersey Department of Health Standards. The schools may opt to conduct summer programming, including ESY for students with disabilities, remotely or by a combination of remote and in-person instruction. If schools wish to operate any in-person programs, or a combination of in-person and remote programs, the school must submit an attestation to the New Jersey Department of Health no later than 24 hours prior to the anticipated opening date, attesting that it will follow all applicable health and safety standards.

The Department of Education guidance does not apply to the 20202021 academic year, and any school that wishes to conduct in-person programming has approximately three (3) weeks to overhaul its summer learning program in accordance with the Governor’s Executive Orders and New Jersey Department of Health Standards. Should you require any assistance to ensure your program is in compliance, we would be happy to assist.

1

https://www.nj.gov/education/covid19/boardops/docs/

SummerLearningResourceGuide_2020.pdf; https://www.nj.gov/education/broadcasts/2020/ jun/12/Guidance%20for%20Summer%20Learning%20Programs.pdf 2

https://www.nj.gov/health/ceohs/documents/phss/Youth_Day_Camps_Standards_

COVID-19.pdf 3

This list is not exhaustive.

24

Planning for Reopening: Considerations for Schools Client Alert – May 2020 Authored by Kerri A. Wright & Kevin M. Craig States across the nation are beginning to plan for reopening businesses, houses of worship, and other venues. In many states, however, schools have committed to concluding the school year without returning to face-to-face instruction and the use of school facilities. Unlike other sectors, educational institutions face unique challenges that must be considered in planning for how they will reengage students when decisions are made to reopen schools.

For most schools, this likely will not occur before the start of the next school year. While some uncertainty still exists, now is the time to plan for the many aspects of the educational environment that will require consideration to facilitate a safe return to school for the whole school community.

Monitoring and preparation Much like businesses and other organizations, returning to school will likely include staff and student monitoring to ensure that individuals who may possess COVID-19 symptoms are identified early. Checking for signs and symptoms will require both established protocols and trained personnel to accomplish. Procedures also will be required to address isolation and testing of those who exhibit symptoms to address medical needs and minimize exposure. In this area, schools should begin working with their school nurses, school physician, local health department and legal counsel to begin reviewing options and establishing an outline of protocols and procedures that are flexible enough to be adjusted as necessary based on the dictates of the State.

Cleaning and disinfecting the school environment and requiring healthy hygiene practices such as hand washing will be important components to mitigate the potential for community spread. While these practices were encouraged pre-COVID-19, providing extra time, posting signs, and purchasing supplies like handwashing stations, sanitizer and no touch garbage pails, will greatly increase the likelihood that these practices will be followed. Schools should conduct a review of custodial staffing and schedules to determine if changes will need to be made, if additional staffing will be necessary to keep up with the additional cleaning, and if current contract or collective bargaining agreement mandates permit the level of flexibility the school will need to operate.

Before schools open, the facilities department should ensure ventilation systems are operating properly and that filters are replaced and cleaned. CDC guidelines recommend increasing circulation of outdoor air as much as possible by opening windows and doors, using fans, or other methods. However, consideration will need to be given to whether there are any health or safety risks with opening doors or windows in certain areas (e.g., allowing pollens in or exacerbating asthma symptoms or other safety risks). CDC guidelines also recommend taking steps to ensure that all water systems and features (including drinking or decorative fountains) are safe to use after a prolonged facility shutdown to minimize the risk of Legionnaires’ disease and other diseases associated with water.

Another important consideration is the use of Personal Protective Equipment (PPE) for staff and students. Face coverings, gloves, and other protective equipment may be necessary for the safe return. All PPE may not be required for all staff and students, however, planning for this in advance and communicating related policies regarding PPE requirements will be key to maintaining compliance. While schools are closed, now is the time to review and draft updated policies that can be implemented on short notice once schools are cleared to reopen.

Schools also will have to consider contact tracing mechanisms and how things like scheduling, class sizes, transportation, and extracurricular activities may impact the ability to do this effectively.

Schools should consult with public health officials to determine the best way to address these issues to support effective contact tracing efforts in the school and community.

Protecting High Risk Populations An eventual return to normalcy will include all staff and students. Initially, however, this may not be the case.

Certain staff and student populations such as older adult staff and individuals with compromised immune

25

Schools should partner with their human resources professionals and legal counsel to develop legally appropriate forms for use by staff or students who request accommodations.

26 Components of Recovery When planning the recovery effort, schools must consider all components to facilitate effective continuity of operations. These components include academic recovery, physical facilities and functions, business operations, and social and emotional support.

Considerations for academic recovery likely will include blended learning formats which will incorporate both faceto-face and remote learning platforms. Social distancing will require smaller class sizes and split schedules. From an academic standpoint, social distancing will necessitate the blended learning model. The continuance of remote learning will require schools to focus on additional supports to ensure student progress as well as evaluation and accommodation of technological needs to ensure equity in education for all students. Assessing student progress also will require significant consideration to ensure the effectiveness of blended learning methods and provide educational support for students who may struggle with this new learning paradigm. From a staffing standpoint, review of current contracts and collective bargaining agreements should be undertaken at this point.

Any largescale change mandated by social distancing will require the cooperation of staff and unions. Bringing these stakeholders into the discussion early will be beneficial to developing a plan that will not be met with resistance or legal challenge.

systems or other health related risk factors may request not to return immediately. This will require schools to consider accommodations for both staff and students in high risk populations. Schools may consider remote working for staff and continued remote learning for students with increased risk factors. Care must be taken to support the needs of these individuals to the same degree as those who are able to return to school facilities.

Schools should partner with their human resources professionals and legal counsel to develop legally appropriate forms for use by staff or students who request accommodations.

These accommodations may include the need to remain “virtual” or “remote” for some period of time. Uniform forms and procedures should be implemented and will need to be established in advance, so that schools can act promptly in responding to requests. Schools must take care not to require information or action from staff or students that may violate State or federal discrimination laws, including the Americans with Disabilities Act or the Age Discrimination in Employment Act.

When considering physical facilities and functions, cleaning and disinfecting school facilities regularly will be of paramount importance. The ability for staff to clean and disinfect the school building, buses, bathrooms, and offices will be an important consideration when addressing school and classroom schedules. Additionally, care will need to be taken to plan routes of egress and ingress that permit continued social distancing.

Transportation of students also is a primary concern.

Busing considerations including additional routes, parent drop-off locations, and in some areas, student use of public transportation will need to be considered. Staggering schedules may be necessary to meet the transportation needs of all students while complying with physical distancing requirements. Consideration should be paid to this need for flexibility when bidding out routes for the 20-21 school year. For those schools who operate their own transportation fleet, review of any contracts with bus drivers should be undertaken at this point to determine if negotiation is necessary to accommodate any change to the transportation schedule.

Food services and meal locations may require significant procedural changes to minimize student contact.

27 Redesigning cafeteria seating, staggering lunch times, and alternate eating locations may be considered to address this.

Students who require free and reduced meal options must continue to be accommodated as well.

The requirements to safely reengage will not be met without additional cost. Budgetary impacts related to staffing increases and equipment procurement to provide a safe and socially distanced learning environment will require unanticipated expenditures. These may result in increased stresses on already limited resources. State and federal funding may be available to offset COVID-19 related costs for things like disinfecting, technology, and other direct costs. Schools must maintain accurate records of these costs and pursue available funding in a timely manner when applications become available.

The impact of COVID-19 and the resulting isolation may impact staff and students in ways that are not readily seen. Anxiety, depression, substance use, and mental health issues may be exacerbated by the social isolation caused by the crisis. Likewise, abuse, neglect, and domestic violence may go unreported due to minimized contact with students. In the same way that schools seek to provide quality educational resources, so too should social, emotional, and behavioral support services be available in both in-person and remote platforms.

Additional Considerations When considering all of the components of recovery, it is important to keep in mind the unique and individualized needs of students with disabilities. Support services, accommodations, and Individualized Education Plans, must continue to be administered to ensure that the needs of the whole school community are met and that special education student progress is maintained.

Staff should undertake a review of all Individualized Education Plans, 504 Plans, and Individualized Health Plans, to begin to consider individual needs of students related to social, emotional, and physical health needs. This would include how to address students with asthma or other health conditions that would make the need to wear PPE difficult. With school not returning to inperson sessions for the remainder of the current year, now is the time to consider and plan for what these students will need.

Other areas for consideration include school security, mitigation compliance, visitor management, privacy protection, and extracurricular sports and activities.

Key Partners The reconstitution of the school community is a multifaceted issue that will require guidance from both internal and external stakeholders. Like other emergency and crisis planning, varied input and perspectives will yield the most effective results.

When engaging in the planning process, partnerships with the school staff, health officials, law enforcement and emergency

management, health care facilities, community agencies and organizations, community stakeholders, and trusted legal professionals and consultants will provide valuable perspectives to help facilitate a safe return to school with the needs of the entire school community in mind.

While the reopening process may seem daunting, with adequate advanced planning, schools can prepare for a safe return with ample flexibility and a clear understanding of the personnel, supplies, and resources required to facilitate the high quality educational standards, support services, and safety and security their staff, students, and families deserve.

28

All New Jersey Employers Must Comply With Latest COVID-19 Executive Order Client Alert – October 2020 Authored by Matthew J. Donohue In response to the surging number of COVID-19 infections throughout New Jersey, Governor Philip Murphy imposed new requirements for every employer (i.e. all businesses, non-profits, governmental and educational entities) pursuant to Executive Order #192. Effective November 5th at 6:00 AM EST, all employers with employees physically present in the workplace must enact new protocols, which include, but are not limited to, enforcing social distancing and mask usage of all individuals, conducting daily health checks of employees, and immediately sending home any employee that appears to have COVID-19 symptoms. Some employers may already be in compliance with these new requirements, but the Executive Order now imposes new fines and penalties on all individuals and employers who fail to comply. Below please find a breakdown of Executive Order #192 to help you effectively navigate this new law.

Pursuant to Executive Order #192, employers with employees present in the workplace must, at a minimum: 1.

2.

3.

4.

5.

6.

7.

8.

require masks and social distancing of all individuals present; provide masks to employees and sanitation materials to all individuals; enforce the practice of regular hand-hygiene; clean and disinfect “high-touch areas”; conduct daily health checks of employees; immediately separate and send home “employees that appear to have COVID-19 symptoms”; notify all employees of any known exposure to COVID-19 at the worksite; and clean and disinfect the worksite if/when an employee has been “diagnosed with COVID-19.”

The Order permits almost all employers1 to remove any employee, customer or visitor who refuses to wear a face mask unless the individual meets one or more of the limited exceptions (e.g., individual is under two years of age; individual is eating or drinking at the establishment; individual has a disability that prevents them from wearing a mask, etc.). However, the Order expressly prohibits those same employers from demanding medical documentation from a customer or visitor that claims to have a disability. All employers can now also adopt policies that require employees to wear gloves, but the gloves must be provided at the employer’s expense.

The New Jersey Department of Labor and Workforce Development, in consultation with the New Jersey Department of Health, are now required to establish protocols to receive complaints and investigate employers who are alleged to be out of compliance with this new Order. Violations of the Order shall be considered disorderly persons offenses, which can result in fines up to $1000.00 and up to six (6) months of incarceration. Moreover, any employer that fails to adhere to the Order may be subject to closure by the Department of Health.

Employers must act quickly to ensure they are fully compliant with this Order no later than November 5, 2020 at 6:00 AM EST. Should you require any assistance interpreting the new protocols, revising policies, or have any questions regarding the Order, the Porzio team would be happy to assist you.

1

The provisions of Executive Order #192 related to requiring mask usage, denying

entry to individuals without masks, and prohibiting employers from seeking medical documentation from visitors claiming to have disabilities do not apply to employers “subject to Executive Order No. 175” (i.e. all public, private, renaissance, and charter schools). However, the provisions of Executive Order #175 already require mandatory use of face coverings by all staff, students, and visitors except for those that meet the limited exceptions included in Executive Order #175.

29

NJ Lifts Stay-At-Home Order: What Does it Mean for Graduation?

Client Alert – June 2020 Authored by Matthew J. Donohue & Kerri A. Wright

On June 9, 2020, Governor Murphy announced that the State of New Jersey would begin to lift the limitations on outdoor social gatherings. Effective immediately, outdoor gatherings may include up to 100 people. Governor Murphy predicted that by July 3rd, outdoor gatherings could have upwards of 500 individuals if there is not a spike in COVID-19 infections. However, all other previous restrictions on outdoor gatherings, including those set forth in the May 28, 2020 memo from the Department of Education, still apply.

Any school district, which includes both public and private schools, that plans to hold a modified, in-person graduation ceremony occurring on or after July 6 must complete a certification to the New Jersey Department of Education that the ceremony will comply with all applicable requirements for gatherings, including, but not limited to, social distancing requirements. The form, when released by the Department of Education, must be submitted no later than seven (7) days prior to the scheduled date of the ceremony.

The Department of Education also recommends that schools notify municipal officials, including the local Office of Emergency Management, local law enforcement, first responders, and local health officials of the school’s plan for the ceremony.

30

New Jersey Expands Leave and Insurance Benefits To Employees Impacted by COVID-19 Employment Law Monthly – April 2020 Authored by David L. Disler On March 25, 2020, New Jersey passed another law to help ease the burden faced by employees who must miss work due to COVID-19. The new law allows employees affected

by COVID-19 to utilize New Jersey’s Earned Sick Leave Act, Family Leave Act, Temporary Disability Insurance, or Family Leave Insurance. The most significant change to these laws is that it provides benefits to employees who must be quarantined or care for a family member who must be quarantined.

New Jersey’s Earned (Paid) Sick Leave Act Even before the new law, the Earned Sick Leave Act provided significant protections to New Jersey employees during the state of emergency. In particular, it could be used by employees who were infected, had to take care for a sick family member who was infected, had to care for a child due to school or childcare closures, or because they could not work due to a closure for a public health emergency. Additional details about the Earned Sick Leave Act are available here.

In addition to these protections, the new law allows employees also to use their earned (paid) sick leave in any of the below circumstances: •

•

•

•

•

The employee is unable to work because his or her workplace is closed by order of a public health official or state of emergency called by the Governor.

The employee is unable to work because the school or child care facility of the employee’s child is closed by order of a public health official or state of emergency called by the Governor.

The employee’s presence in the community or employee’s family member’s presence in the community (who requires care by the employee) would jeopardize the health of others.

The employee is quarantined due to suspected exposure to a communicable disease and a healthcare provider indicates that the employee’s presence in the community would jeopardize the health of others.

The employee cares for a family member who is quarantined due to suspected exposure to a communicable disease and a healthcare provider

indicates that the family member’s presence in the community would jeopardize the health of others.

The first bullet point above clarifies that it is permissible to do what many employers already had been doing -namely, to permit employees to utilize their earned sick leave time when they are unable to work because their workplace currently is closed and there is no remote work for the employees.

New Jersey’s Family Leave Act New Jersey’s Family Leave Act provides employees with up to 12 weeks of unpaid family leave to care for a family member with a serious health condition.1 The new law expands the definition of a “serious health condition” during a state of emergency to include an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent the spread of a communicable disease. However, family leave only can be taken in these circumstances if either: •

•

A healthcare provider or a public health authority issues a determination that the family member’s presence in the community may jeopardize the health of others; or A healthcare provider or public health authority makes a recommendation, direction, or order that the family member be isolated or quarantined because of suspected exposure to the communicable disease.

It is important to note that no other aspect of the Family Leave Act was modified by this amendment. Therefore, employers may (and should) still require documentation from the employee, even if only a letter or email noting the need for the leave. It also still only applies for the care of a family member, which definition was expanded in 2019 to include a child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, or one partner in a civil union couple, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.

This definition is the same for the above-referenced Earned Sick Leave.

31

New Jersey’s Temporary Disability Insurance (“TDI”) and New Jersey’s Family Leave Insurance (“FLI”) Temporary Disability Insurance provides cash benefits to New Jersey workers who suffer an illness, injury, or other disability that prevents them from working, and which was not caused by their job. Most employers in New Jersey must have Temporary Disability Insurance for their employees. Family Leave Insurance provides New Jersey workers cash benefits for up to six weeks to bond with a newborn, newly adopted, newly placed foster child, or to provide care for a seriously ill or injured family member.

While most New Jersey workers who take family leave are covered under the State’s family leave program, some employers provide Family Leave Insurance through a plan with a private insurance carrier instead.

The main difference between Temporary Disability Insurance and Family Leave Insurance is that Temporary Disability Insurance is used when the employee is seriously sick, whereas Family Leave Insurance is used when the employee is caring for a seriously sick family member.

Therefore, employees who became seriously sick due to contracting COVID-19 or had to care for a family member who became seriously sick due to COVID-19 already could use Temporary Disability Insurance or Family Leave Insurance. However, the new law allows employees during a state of emergency to use Temporary Disability Insurance or Family Leave Insurance if they have (1) an illness caused by an epidemic of a communicable disease; (2) a known or suspected exposure to a communicable disease; or (3) are taking efforts to prevent the spread of a communicable disease. In these cases, Temporary Disability Insurance or Family Leave Insurance only can be taken if a healthcare provider or public health authority makes a recommendation, direction, or order that the family member be isolated or quarantined because of suspected exposure to the communicable disease. Family Leave Insurance also may be taken if a healthcare provider

or a public health authority issues a determination that the family member’s presence in the community may jeopardize the health of others.

Conclusion New Jersey already provided significant benefits to employees under its Earned Sick Leave Act, Family Leave Act, Temporary Disability Insurance, and Family Leave Insurance. As a result, significant changes were not necessary to provide benefits to those who became sick or needed to care for a family member who became sick due to COVID-19.

Instead, the most noteworthy addition to these laws is they now provide benefits to employees who must themselves be quarantined or who are caring for a family member who must be quarantined because of known or suspected exposure to a communicable disease. Due to the lack of testing available and the unprecedented nature of how COVID-19 spreads, it is not surprising that these provisions were not in the original laws, but the Legislature felt a need to make these revisions.

Employers should review their policies and update them where necessary to ensure compliance with these new expanded provisions. In light of the current COVID-19 circumstances, employers may wish to create new forms to be used by employees seeking to use unpaid time under the Family Leave Act for these new expanded reasons.

1

It also commonly is used for the birth or adoption of a child.

32

Instead, the most noteworthy addition to these laws is they now provide benefits to employees who must themselves be quarantined or who are caring for a family member who must be quarantined because of known or suspected exposure to a communicable disease.

33

The Fate of the FFCRA: Mandatory Paid Leave For Employees Impacted By COVID-19 Will Become Voluntary In 2021 Under The Consolidated Appropriations Act Client Alert – December 2020 Authored by Kathryn K. Forman

As many employers are aware, the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Act Expansion set forth in the Families First Coronavirus Response Act (FFCRA) are set to expire on December 31, 2020. With the effects of COVID-19 still impacting the American workforce significantly, many employers are wondering whether, and to what extent, they will remain obligated to continue providing paid leave to eligible employees. The answer to this question lies within the Consolidated Appropriations Act, 2021, enacted December 27, 2020, under which the paid leave mandates of the FFCRA will become voluntary for the first quarter of 2021.

Specifically, Section 286 of the Act amends the FFCRA to set forth that employers no longer will be legally obligated to offer the paid leave mandated in the 2020 version of the law, but may be entitled to the FFCRA tax credit for doing so, with the amendment set to expire on March 31, 2021. The Act does not, however, expand the original leave entitlement, so employers must keep in mind that the credit will be available only for paid leave provided to employees who have not already exhausted their available FFCRA leave. The Act also leaves undisturbed the coverage provisions of the FFCRA, so employers that were ineligible for the credit under the 2020 FFCRA will remain ineligible, including government entities (such as public school districts).

As always, employers also must keep in mind the importance of applying federal leave laws in conjunction with state leave laws, such as New Jersey’s Earned Sick Leave Law, New Jersey’s Family Leave Act, and the requirements of the New Jersey Law Against Discrimination, which, depending on the circumstances, may require employers to offer leave beyond that which is mandated by federal law.

Employers with questions regarding how to apply COVID-19 leave laws in specific situations are encouraged to reach out to a Porzio attorney for guidance.

34

New Requirements for Public Meetings During a State of Emergency Client Alert - October 2020 Authored by Matthew J. Donohue On May 15, 2020, New Jersey Governor Philip Murphy signed P.L. 2020, c. 34 into law, which allows public bodies (e.g., municipalities, boards of education, etc.) to conduct public meetings remotely during a state of emergency, and permits the Director of Local Government Services to enact emergency regulations clarifying the new law. In late September, the Director enacted emergency regulations that establish “minimum procedures to be followed” by all public bodies, and currently are in effect.

Under the emergency regulations, public bodies may now only conduct remote meetings “if the [state of] emergency reasonably prevents a local public body from safely conducting public business at a physical location[.]” Otherwise, the public bodies must attempt to hold the meetings in-person. If a public body does conduct an in-person public meeting, the public body must either: (1) hold the meeting in a location with adequate capacity for the reasonably expected attendance by the public; or (2) hold the public meeting as both an in-person and remote public meeting. If a public body conducts either an in-person meeting or a hybrid in-person/remote meeting, the regulations require members of the public to be able to attend the meeting in person.

If the public body conducts a remote meeting, the public body must include in the notice “clear and concise instructions for accessing the remote public meeting, the means for making public comment, and where relevant documents, if any, will be made available.” To meet the “adequate notice” required under the Open Public Meetings Act, the regulations require all public bodies transmit the notice to at least two newspapers for publication and post the notice electronically on the public body’s website. The regulations allow a public body to hold a meeting by providing electronic notice in lieu of the traditional “adequate notice” (i.e., notifying two newspapers), but the public body shall only be permitted to discuss matters: •

•

necessary for the continuing operation of government and which relate to the emergency declaration connected with the declared emergency; or requiring decision during the remote public meeting due to imminent time constraints.

Public bodies also must adopt procedures and requirements for public comments during a meetingd, which must include, at a minimum: •

• •

An announcement during the beginning of the meeting that explains the muting functions of the software (e.g., the public body is permitted to mute all citizens until the public comment section, and will then unmute each individual wishing to comment in the order the requests are received); The public body shall facilitate a dialogue with the commenter to the extent permitted by the technology; If a member of the public becomes disruptive, the public body may mute the individual, and provide a warning that further disruptive behavior will result in either the removal of the individual from the meeting or a continuous mute until the conclusion of the meeting.

To reiterate, the emergency regulations currently are in effect, and will be considered for permanent adoption on October 19, 2020. Should you require any assistance to ensure your notices, resolutions, and comment procedures are in compliance with the regulations, the Porzio team would be happy to assist.

35

Emergency Planning for Students with Disabilities Published in NJSBA School Leader - May/June 2020 Authored by Kerri A. Wright & Elizabeth M. Shea No doubt the COVID-19 pandemic has raised new and unanticipated challenges for schools across the state and the nation.

The state’s administrators, teachers, and aides find themselves in new and unchartered territory trying to navigate an entirely remote learning environment. Basic educational strategies that assume a face-to-face environment are now unavailable, and teachers are using new technology and products with which they had little, if any, prior experience. To make matters worse, no one in education had much notice about the shift to online learning and everyone remains unsure how long this “new normal” will last. In fact, no one knows when things will be “back to normal”; the only thing we know for sure is that things will look considerably different for a while.

Notably, there is at least one group affected more than others by this uncertainty and lack of opportunity to fully develop and implement plans: members of the disability community and those who support them.

In fact, it has been shown time and again in almost every emergency scenario nationwide, including natural disasters, active shooter events and other crises, that addressing the needs of individuals with disabilities requires a higher level of planning. Often the planning for this group is lacking.

During Hurricane Katrina in 2005, and again during Superstorm Sandy in 2012, individuals with disabilities and medical frailties had difficulty evacuating or getting to a shelter. Many were stranded while awaiting evacuation assistance, confined to their homes, often without electricity, in need of medication, and with little or no ability to communicate with the outside world. Yet, addressing the unique needs of people with disabilities continues to be an afterthought in most emergency planning.

In all likelihood, this is a reflection of the fact that emergency planning for people with disabilities is both complex and time consuming. Given that emergency planning in general is challenging and is often overlooked in the normal course of daily life, it should really be no surprise that it is even less likely that preparations will be in place for a population that is difficult to plan for.

School Safety Planning The school safety planning front is no different. Typically, any report on school safety best practices includes a mention about the need to incorporate students with disabilities into the planning. Unfortunately, too often, that “mention” is the end of the discussion. Schools are given little to no guidance about how to actually incorporate the distinctive needs of students with disabilities into safety planning.

Although one in 10 students in the United States has some type of disability, the vast majority of these students will not require specific accommodations related to emergency planning.

However, schools absolutely need to identify the students who require specific accommodations and develop a safety plan to address the students’ specific needs. Identification is the key first step to starting the planning process, but how schools identify which students will require special accommodations in emergency situations and make sure they capture those needs in their overall planning is difficult. While several effective policies exist to ensure safety planning captures the needs of students with disabilities, incorporating a “special needs safety planning tool” (SNSPT”) into the annual IEP (or 504 plan) process for each classified student provides the school with the biggest return on its investment.

36

Special Needs Safety Planning Tool An SNSPT is a simple tool that outlines how a student’s disabilities may impact him or her in an emergency event and accommodations required to ensure the student’s safety. The SNSPT should include a preliminary meeting with all child study team members, parents and students to evaluate and determine whether any specific planning or accommodations is required for each student due to his or her disabilities related to crisis planning and safety drills. The tool should be user-friendly and easy to incorporate into the current IEP (individualized educational program) process. It should serve as an extension of what already is occurring in those discussions, and should provide a place to document any special needs the student has related to safety. All child study team members, as well as parents and students, should be trained on the tool so they can inform the discussion. Sample SNSPTs exist for schools to use, but schools should adapt a tool for specific use to make sure all needs are captured in the plan.

A key component of the SNSPT is the discussion about the student’s ability to comprehend the nature of various emergencies, react “appropriately” as needed, the need for access to additional medications or special items to assist in an emergency scenario or lockdown (i.e. sensory objects, headphones, electronic devices, etc., that may be needed to calm or quiet a child during an event), and — perhaps most importantly — how the team is going to work with the student (as needed) to ensure he or she receives useful and effective practice-related to the possible emergency scenarios that may arise.

It also is critically important that schools engage students themselves, as well as their family members, in identifying areas where an accommodation may be required, as well as potential solutions to challenges that are identified during the discussion. It is not uncommon for parents to have an entirely different set of strategies they have developed for use at home to assist their child in a tough situation.

No idea should be “off the table” in discussions about how to best accommodate a child during a crisis.

An additional benefit of building SNSPTs into the IEP process is that the annual IEP development process provides a school with a “built-in” system for incorporating disability planning into school safety planning. Because IEPs—by law—must be reviewed and updated on an annual basis, this requirement guarantees an annual review and updating of the SNSPTS related to any safety concerns.

The second step in the SNSPT process is to communicate the information contained in the SNSPT to the school safety personnel charged with the school’s larger emergency response plan. Schools should engage experts to review the plans and ensure they use elements of universal design in all safety planning. All schools are already required to conduct regular drills, and most already do some form of tabletop exercises. Tying what is learned from the SNSPT process into these strategies is essential to ensuring the information is communicated to all parties.

Finally, once a school has identified the special needs of each student, consulted with any necessary experts, and incorporated those needs into their overall schoolwide safety plan, all responsible personnel should be trained on the plan and their role in implementing it. Without this third step, the first two are almost meaningless. Training must be ongoing and updated on a routine basis. Planning with the unique needs of students with disabilities in mind is not easy, nor is it quick. But it is necessary and it is doable. We have all come to a better appreciation over the last two months of the need to plan for what may come at any time.

As the air clears and life slowly goes “back to normal,” let’s try not to forget this lesson. Furthermore, let’s apply it to other areas where we have historically been too complacent. Incorporating the needs of students with disabilities in school safety planning is a great place to start.

37

Liability For Educational Decisions: Student Grading and Placement in the Age Of COVID-19 Client Alert – May 2020 Authored by David C. Hespe The disruptive impact of the COVID-19 pandemic has impacted all areas of society including education. School districts throughout the State of New Jersey ceased physical operations in the middle of March pursuant to a declaration of public health emergency by Governor Murphy. Schools then moved, with little advance notice and preparation, to an entirely on-line learning modality that will continue through, at least, the end of the school year. The legislature by statute (P.L.2020, c.27) has deemed a day of “virtual” learning to be equivalent to a day of classroom instruction for purposes of meeting the State’s 180 minimum school day obligation. However, the most serious issue that districts will face does not concern operational obligations but the efficacy of their learning programs.

Due to the extended closure, school leaders across the State are faced with huge holes in the curriculum, including, but not limited, to students unable to complete evaluation projects and being identified in need of remediation in order to enter school in September on grade level but without the availability of needed interventions. In addition, research reports have indicated that many students will regress academically as a result of moving precipitously to an on-line learning modality and these students and their needs must be identified. On the other end of the spectrum, parents are demanding that their child receive an “A” by default (given the changes in instructional delivery methods, course content, projects and evaluation) or to be automatically placed in an enrichment program.

These serious educational challenges bring serious legal liability considerations. Decisions regarding student grades, promotion, and placement are governed by state and federal laws and regulations; board policy, and district administrative practices. Students and their parents have clear expectations, based on the established criteria and past practice, regarding how these decisions will apply to their situation. However, given the new educational environment, these laws and practices established well before the current pandemic may now be difficult to meet, creating the risk of liability for districts. This article will examine legal liability issues concerning these high stakes decisions in the age of COVID-19.

Promotion and Placement Given the sequential nature of the New Jersey Student Learning Standards, students should learn core competencies in one grade level before beginning the next grade level. Therefore, determining readiness for promotion by identifying the learning standards that may have been missed or insufficiently addressed due to the disrupted three months of the school year is essential for student success. These placement decisions are made more difficult by the suspension of the State testing program and the unavailability of district benchmark and interim assessments resulting in less data being available to support these decisions.

In the area of student promotion, State law provides great flexibility to school boards and administrators. Unlike in many other states that have established uniform statewide cut-off criteria or assessment scores to be used to determine student eligibility for promotion or retention, New Jersey has devolved this authority to the local level. Statutes not only provide that districts have the right to establish their own policies but they must adopt specific criteria for promotion, remediation and grade retention (see N.J.S.A. 18A:35-4.9 and N.J.S.A. 18A:4-24). This authority has also been interpreted to give school districts authority to test children for grade placement. These required policies must also establish processes regarding parental notification of progress to permit parents to become informed partners in decision making and supports.

38 Boards of education have in turn adopted broad policies typically linking promotion to attainment of the New Jersey Student Learning Standards, course progression and attendance, as well as social and emotional development. Board policy will also specify notification requirements, typically quarterly reports regarding the student’s progress towards meeting the promotion standards.

The concern that arises from the pandemic response is whether schools will be able to fulfill the board and administrative expectations for identifying student learning gaps and readiness for promotion, as well as needed intervention, support and monitoring. The obligation to notify parents regarding learning deficiencies may also be problematic in terms of the manner, method and timing of the notification.

The first step for addressing the potential legal liability is for the district to immediately review its policies and administrative regulations (guidance documents) concerning promotion, progress, support and notification. Given that many of these policies were likely adopted many years, if not decades, ago taking time to ensure that the board and administrative team are familiar with the requirements is very important.

The next step is to determine if these expectations are capable of being implemented in the current environment. It is important to note that the declared state of emergency and executive orders do not provide school districts with the flexibility to disregard law and policy. A district can, however, change existing policy, for example, holding a special meeting. Notification to parents and the school community of any adopted changes should then immediately occur. One of the greatest legal dangers to school districts is evidence that they did not follow their own policies and procedures in making these serious decisions.

If existing policy and administrative regulations/guidance do not need to change, a district should focus on ensuring that decisions made by principals and staff properly reflect the established criteria, are supported by the factual record, and are consistent regarding similarly situated students (non-discriminatory). Deviations from past practice should be noted and addressed. Promotion decisions will normally be upheld if they are based upon legitimate and reasonable educational-policy rationales and grounded in the academic needs of the student.

The good news for districts is that the commissioner has consistently ruled that board policy, as well as a board’s interpretation and application of policy, is entitled to a presumption of validity and should not be disturbed unless the implementation of the policy is definitively demonstrated to be the result of bad faith, or the actions were deemed to be arbitrary, capricious, or without a reasonable basis.1 Grading Local Boards of Education are also given broad discretion in terms of grading policies and decisions. It is well settled that grading decisions are the prerogative of local school boards. Grading policies need not be formally codified although they must be reasonable and applied in a nondiscriminatory manner.2 Districts should review their grading policies and regulations/guidance documents to ensure that they can still be implemented fairly given the pandemic and movement to on-line learning. Changes to existing policy, procedures or past practice should be immediately communicated to parents and the school community. For example, many grading policies require that students be informed at the outset of any course what the performance criteria will be and the proficiencies expected of them. If the course requirements are no longer possible (for example, evaluation techniques such as tests, projects or experiments that can no longer be performed), students should be notified of the change immediately. In these circumstances, students may be required to demonstrate proficiency through alternative means as long as adequate notice and the opportunity to learn has been provided.

39 Teachers and school level administrators should be careful to apply the new expectations in a non-punitive and non-discriminatory manner.3 The failure by a student to complete the work assigned should be properly documented along with outreach and efforts to support the student in completing the project. Attendance and participation should also be properly tracked. Robust parent communication regarding progress toward meeting these new expectations is also important.

Educational Malpractice Although most suits regarding grading and promotion decisions will come in the form of a petition before the Commissioner of Education to overturn a particular decision, districts may also face the prospect of a suit for damages.

For example, some teachers will be tempted to issue passing (or inflated) grades to all students in order to avoid confrontation with parents, controversy, or to ensure that their decisions will not be scrutinized or challenged. Unfortunately, this course of action brings with it other concerns. If a school passes or promotes a student who clearly has not met the competencies required by district policy, a parent may file suit under a theory of professional negligence. The good news for educators is that courts almost always dismiss lawsuits against schools based on an alleged failure to educate. Most lawyers deem educational practice claims to be almost impossible to win given that in order to be successful, the parent (on behalf of the student) would need to prove that: • • • •

the defendant owed the plaintiff a “duty of care”; the defendant violated that duty; the negligence caused the plaintiff harm; and as a result, the plaintiff suffered an injury.

The first element, the existence of a duty, arguably can be established in the obligation of schools to provide students with adequate instruction as well as accurate and timely feedback regarding academic skill levels. School districts also have a duty not to mislead students as to whether they are meeting grade level or course expectations, or regarding the need for remedial instruction. However, the other elements will be much more difficult to prove. Most educational malpractice cases will fail due to a difficulty with establishing a breach of that duty (that some identifiable standard of care was not met) given the multitude of influences on the student’s academic progression outside the classroom and before enrollment in the school.4

For this reason, many lawsuits against schools are not proceeding under a theory of educational malpractice, but are focusing instead on specific actions or inactions on the part of teachers, counselors and administrators as proof of other more easily proven causes of action.

The remedy under these theories of legal action could be such things as an order of compensatory instruction.

Conclusion Districts must provide students with grades that accurately reflect course outcomes and must also determine a student’s placement for the 2020-21 school year, readiness for promotion, and need for remediation. In order to accomplish this, given the disruption caused by the pandemic, districts must immediately undertake a review of the current policy and practice expectations for these decisions. Districts should ensure that appropriate changes are made based on a solid rationale, communicated immediately to the school community, and implemented fairly and consistently.

See R.W. on behalf of minor children: A.W., J.W., O.W. and L.W. v. Board of Education of The Township of Washington, Gloucester County, OAL No. EDU 8748-09, Agency No.

1

133-6/09; Thomas v. Morris Bd. of Educ., 89 N.J. Super. 327, 332 (App. Div. 1965), Kopera v. W. Orange Bd. of Educ., 60 N.J. Super. 288, 294 (App. Div. 1960). G.M. v. Roselle

Park Borough Bd. of Educ., 95 N.J.A.R. 2d (EDU) 107, 109.

2

See M.M. v. Demers, et al., 92 N.J.A.R. 2d (EDU) 525, 526; Tarlarsky v. Edison Twp. Bd. of Educ., 1977 S.L.D. 862).

3

See L.M., on behalf of minor children, J.M. and J.M. v. Board of Education of the Township of Allamuchy, Warren County (Commissioner of Education Final Decision, OAL

Dkt. No. EDU 17944-18, Agency Dkt. No. 271-11/18).

4

See, for example, Donahue v. Capiague Union Free School Dist., 391 N.E.2d 1352, N.Y. App. (1979) where the court dismissed a suit in which a high school graduate argued

that the school failed to provide him with an adequate education and promoted him through graduation even though he was functionally illiterate and was not able to even complete a job application.

40

New Procedures, Same Old FERPA: How the Return to School Impacts Student Records Client Alert - July 2020 Authored by Matthew J. Donohue On July 6, 2020, a select few schools re-opened their doors for Extended School Year (“ESY”) in-person instruction as Governor Murphy’s restrictions began to lift. In several weeks, all New Jersey schools will be required to have some form of in-person instruction while implementing new procedures and protocols, such as screening staff and students for Coronavirus Disease 2019 (“COVID-19”) in accordance with the New Jersey Department of Education (“NJDOE”) guidance. The information and documentation generated as a result of these new protocols and procedures must remain in compliance with all federal laws, including the Family Educational Rights and Privacy Act (“FERPA”).

Fortunately, The United States Department of Education (“USDOE”) released guidance on frequently asked questions related to FERPA and COVID. This alert provides a brief overview of the USDOE guidance.

Generally, FERPA requires that a parent or eligible student must provide written consent before the school discloses personally identifiable information (“PII”) from “student education records” to individuals and entities who may not already have access to that information. Due to the COVID-19 pandemic, schools will create and record health information and records (e.g., temperature records, contact tracing information, etc.) that qualify as “student education records” under FERPA. In the event a student tests positive, the NJDOE requires school officials to “immediately notify local health officials, staff, and families of a confirmed case while maintaining confidentiality” of a confirmed COVID-19 case.

However, situations may arise where a school can disclose PII as a result of a “health or safety emergency,” which would not require a school to obtain a parent or student’s consent. While the USDOE and NJDOE recommend obtaining consent whenever possible, the USDOE FAQ contains various scenarios which explain when school officials need, or do not need, consent in the event of a confirmed case of COVID-19 on school grounds.

For example, a school may disclose student health records, without consent, to public health departments if the educational agency or institution believes that the virus that causes COVID-19 poses a serious risk to the health or safety of an individual student in attendance (or another individual at the agency or institution), such as an outbreak of COVID-19 occurring on school grounds. However, if a student is absent and a school merely suspects that the student may have COVID-19, the school cannot reveal the name, address, and phone number of the absent student to the public health department without obtaining consent.

In regard to informing other students and their parents of another student’s confirmed COVID-19 case, schools only can reveal “non-personally identifiable” information without consent in most instances. When releasing this information, schools must strike a delicate balance to inform these other students and their parents that a student tested positive for COVID-19 without “disclos[ing] other information that, alone or in combination, would allow a reasonable person in the school community to identify the student who [is] absent due to COVID-19 with reasonable certainty.” A rare situation may

41

arise where a school — in conjunction with health, law enforcement, or other such officials — may disclose identifiable information about a student with COVID-19 to parents of other students if parents need to know this information to take appropriate action to protect the health or safety of their children. For example, the USDOE stated that this may be appropriate if: 1. “a student with COVID-19 is a wrestler and has been in direct and close contact with other students who are on the team or who are in the school and have higher health risks, school officials may determine it necessary to disclose the identity of the diagnosed student to the parents of the other students. In these limited situations, parents and eligible students may need to be aware of this information in order to take appropriate precautions or other actions to ensure the health or safety of their child or themselves, especially if their child or they may have a higher risk of susceptibility to COVID-19 or of developing severe complications from COVID-19.”

It bears repeating that this is the exception to the rule, but shows the difficulties schools will face when making these case-by-case determinations regarding PII, consent, and which entities or individuals to inform.

The USDOE guidance contains other important examples and a sample FERPA consent form, which mirrors the previous FERPA consent forms many, if not all, schools used prior to the COVID-19 pandemic. For your convenience, please find a link to the USDOE FERPA guidance below: https://studentprivacy.ed.gov/resources/ferpa-and-coronavirus-disease-2019-covid-19 Schools will need to take care to update their student record policies, to ensure they include reference to this public health exception. Please do not hesitate to contact us with questions you may have regarding FERPA. Should you require any assistance to ensure your school is in compliance, we would be happy to assist.

42

The Authors

Kerri A. Wright Principal and Editor-In-Chief 973.889.4327 kawright@pbnlaw.com

Kevin M. Craig Assistant Vice President Porzio Compliance Services 973.889.4266

David L. Disler Associate 973.889.4133 dldisler@pbnlaw.com

dldisler@pbnlaw.com

Vito A. Gagliardi, Jr. Principal 973.889.4151 vagagliardi@pbnlaw.com

David C. Hespe Of Counsel 973.889.4102 dchespe@pbnlaw.com

Melanie D. Lipomanis Associate 973.889.4287 mdlipomanis@pbnlaw.com

43

Matthew J. Donohue Associate 973.889.4212

Janelle Edwards-Stewart Counsel 973.889.4092

mjdonohue@pbnlaw.com

jedwardsstewart@pbnlaw.com

Thomas J. Reilly Associate 973.889.4283 tjreilly@pbnlaw.com

Elizabeth M. Shea Of Counsel 973.889.4253 emshea@pbnlaw.com

Kathryn K. Forman Associate 973.889.4046 kkforman@pbnlaw.com

100 Southgate Parkway P.O. Box 1997 Morristown, NJ 07962-1997

973.538.4006 www.pbnlaw.com