September 15, 2020 

On September 14, 2020, Governor DeWine signed Ohio Amended Substitute House Bill 606 (“H.B. 606”) affirming the Ohio Legislature’s extension of qualified civil immunity for COVID-19-related claims. H.B. 606 specifically expands Ohio qualified civil immunity provisions and precludes civil lawsuits for “injury, death, or loss to person or property” when the cause of action is based (in whole or in part) on exposure to, transmission or contraction of COVID-19, or a mutated form of the virus. The Legislature’s extension of this qualified civil immunity is specifically applicable to lawsuits against schools as well as state institutions of higher learning, governmental, religious, for-profit, and nonprofit entities.

Throughout H.B. 606, the Ohio Legislature made clear that it is aware of the unprecedented uncertainty surrounding COVID-19 as well as the numerous lawsuits already filed across the country alleging tort liability related to COVID-19. It also points out that business owners have not historically been required to keep members of the public from being exposed to airborne viruses, bacteria, and germs. The Ohio Legislature also reiterated through H.B. 606 that orders and recommendations from the Ohio Executive Branch, counties and local municipalities, boards of health and other agencies, do not create any new legal duties for purposes of tort liability. Such orders and recommendations are presumed to be irrelevant to the issue of the existence of a duty or to a breach of a duty and are inadmissible at trial to establish proof of a duty or breach of a duty in tort actions.

Like other immunity laws, H.B. 606 does not extend immunity to reckless conduct, intentional misconduct or to willful or wanton misconduct on the part of a school, state institution of higher learning, governmental, religious, for-profit or nonprofit entity related to COVID-19. Therefore, liability may still be found for claims related to conduct by a school (or other named entity) that is indifferent to the consequences, or disregards a substantial and unjustifiable risk causing an exposure, transmission or contraction of COVID-19 (or a mutation of the virus).

The qualified civil immunity created by H.B. 606, as applied to claims related to COVID-19, is retroactive to March 9, 2020, when Governor DeWine issued a state of emergency, and will continue through September 30, 2021. While this immunity provides substantial relief to Ohio schools and businesses, both are encouraged to continue to seek guidance from legal counsel on areas of potential liability as the COVID-19 pandemic continues to evolve, particularly as the immunity afforded under H.B. 606 is not absolute.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.

Lisa Burleson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at lburleson@walterhav.com or at 616-246-2156.

September 4, 2020 

The Director of the Ohio Department of Health (“ODH”) issued an order on September 3, 2020 requiring reporting and notification regarding COVID-19 cases in K-12 schools (the “Order”). The Order requires all K-12 schools to maintain a reporting system for parents to report positive tests and/or cases of COVID-19 and encourages parents to begin notifying schools no later than 24 hours after receiving a COVID-19 diagnosis. The system can use existing resources, including an attendance line, school nurse line, or other attendance tracking system to meet this requirement so long as the selected system is monitored daily and allows for COVID-19 case reporting.

August 21, 2020 

On Tuesday, August 18, 2020, Governor Mike DeWine announced that all sports (both contact and non-contact) would be permitted to move forward this fall. The Order, issued by the Interim Director of the Ohio Department of Health (ODH) has been in effect since Wednesday, August 19, 2020, at 11:59 p.m. This development comes after a series of temporary and amended orders related to contact and non-contact sports, and is significantly more comprehensive and includes detailed guidance not only for athletes and coaching staff but also for venues and spectators.

Pursuant to the new Order, the ODH is setting forth the minimum mandatory standards that must be complied with by all who play, coach, officiate, or attend sports. A summary of each section of the Order is provided below.

All sports are permitted to practice and engage in competition. Subject to their full compliance with all provisions of the Order, K-12 schools are permitted to practice and engage in extracurricular athletic activities.

Governing authority rules. In addition to complying with the health mandates set forth in the Order, sports and sports participants must comply with any additional health rules for the prevention of COVID-19 from their governing authorities, which would include local departments of health and boards of education.

Social distancing requirements for sports. Social distancing requirements still include maintaining at least six-foot social distancing from other individuals, and not shaking hands or engaging in other team-building or social interaction of a close nature.

Enforcement. Teams, coaches, school officials, and sporting venues must comply with the requirements of the Order, and must appoint a compliance officer for each event. The Order can also be enforced by local authorities, and violations of the requirements could result in hefty fees, jail time or both.

Safety Requirements for Sports to Practice or Compete:

Coaching Staff and Player Safety Requirements

• Players, coaches, athletic trainers and officials must conduct daily symptom assessments before each practice or game.
• Anyone experiencing COVID-19 symptoms must stay home.
• Coaches must participate in COVID-19 education developed by ODH and educate players on how to prevent the spread of the illness.
• There must be no congregating before or after practices or games.
• Coaches, athletic trainers, volunteers, and officials must wear face coverings at all times, and players must wear face coverings when not on the field or court of play, with few exceptions.
• Coaches must promote good hand hygiene and respiratory etiquette. Flyers and signs are available here.
• When a coach is aware of athletes who are at an enhanced risk of developing serious complications from COVID-19, such as those with asthma, diabetes, or other health problems, the coach must adopt extra precautions to protect them. (This could include suggesting or requiring an additional consultation with the primary care physician in light of the Order and new information regarding associated risks.)

Spectator Safety Requirements

• All spectators must conduct daily symptom assessments and sit together, socially-distanced from other individuals/families/household groups.
• Each seating group must be separated from the next group by at least six feet in each direction. Seating groups must be assigned in staggered rows and sections to prevent contact between groups.
• Anyone experiencing COVID-19 symptoms must stay home.
• Spectators are required to wear face coverings at all times, unless actively eating or drinking concessions.
• There must be no congregating before or after practices or games.

Practice and Competition Safety Requirements

• Limit time spent on activities where players are in close proximity for extended periods of time. Six feet social distance must be maintained between individuals competing in sports except when necessary.
• Ensure that facilities have adequate space for social distancing for players, coaches, athletic trainers, officials, parents/guardians, and spectators off the field or court of play.
• Players, coaches, and officials are not to physically contact each other before or after practice or pregame and competitive play.
• Prior to tournaments, tournament organizers must notify the local health department.

Equipment Safety Requirements

• Equipment and personal items must have proper separation and should avoid being shared. If equipment must be shared, proper sanitation must be performed between users.
• Do not share water bottles or drinks.
• Do not share food.
• Do not share towels or facial coverings.

Venue Safety Requirements

• Each sports venue is required to have a written operations plan, prepared in consultation with local health departments.
• Time must be allotted between practice sessions to allow teams to exit fields/facilities prior to new teams arriving and for proper sanitizing for shared spaces and high-touch surfaces (benches, equipment, etc.).
• Facilities, teams, and clubs must ensure that facilities have adequate space for social distancing for players, coaches, athletic trainers, officials, parents/guardians, and spectators off the field or court of play.
• Locker rooms, weight training rooms, restrooms, and athletic training rooms must be cleaned and sanitized frequently. Individuals must maintain social distancing as much as possible while in these rooms. Face coverings must be worn at all times while in these rooms.
• When playing inside, ensure ventilation systems or fans operate properly. Increase circulation of outdoor air as much as possible, such as opening windows and doors unless doing so poses a safety or health risk.
• Concessions and retail vendors are to follow guidelines already in place for bars and restaurants.
• Make hand sanitizer available at convenient locations.
• Prioritize ticket distribution or event access to the sports participants’ family and household members.

Team Travel Safety Requirements

• Individuals traveling together by bus, etc., must wear a face covering and should social distance whenever possible. (Consider providing parents a release allowing them to transport athletes when possible.)
• Prior to departure, conduct a symptom and temperature check.
• Compete in your local area; i.e., no more than one hour’s worth of travel time in one direction.

Suspected and Confirmed Cases Safety Requirements

• Players, coaches, officials, or other individuals who had close contact or who had direct physical contact with an infected person must self-quarantine for 14 days following exposure.
• Any players, coaches, officials, or other individuals who become ill or develop symptoms must be immediately isolated and seek medical care, and should seek COVID-19 testing as soon as possible.
• Contact the local health department about suspected COVID-19 cases or exposure and to coordinate contact tracing.
• Districts must notify all athletes and parents/guardians associated with the affected team regarding a positive test, but should protect student confidentiality and allow the department of health to determine if and when the identity of a positive case should be disclosed.
• If the affected individual participated in competitive play, the District must notify all opponents played between the date of the positive test and two days prior to the onset of symptoms.
• An individual who tests positive for COVID-19, whether symptomatic or asymptomatic, shall not return to sports activities until a documented medical exam is performed clearing the individual.
• When a player, coach, or athletic trainer tests positive for COVID-19, team members who are not close contacts requiring self-quarantine, as determined by the local health department, should conduct: (1) a daily symptoms assessments and stay home if sick, and (2) an in-person temperature check before the start of each practice and game for 14 days as a precaution.

Limitation on spectators at sports venues. Spectators are permitted to attend sporting events, with exceptions and limitations as set forth in the Order.

• Spectator Pathway: Venues must develop a spectator pathway that allows for physical distancing as spectators move from parking, through box office lines, ticket scanning, and security screening to their seats.
• Signage and Education: Venues must communicate reminders of physical separation, face coverings, hygiene, and health symptoms through public announcements throughout the event. (Use of announcements over the PA system is recommended.)
• Facial Covering: Spectators must wear a cloth face covering at all times. Reinforce face covering requirements with signage and announcements throughout the venue/event.
• Cleaning and Hygiene: Venues should conduct frequent cleanings of high-traffic areas and allow adequate time between events in order to do so. It is recommended that every other sink in bathrooms is made available to the public in order to promote physical distance.
• Handling Sick/Symptomatic People: Venues must develop a plan for handling sick/symptomatic individuals. Any person with symptoms consistent with COVID-19 should be instructed to return home or be taken to a dedicated isolation area.
• Flexibility and Accountability: Sports facilities/venues must designate an individual responsible for the compliance with this Order.
• Concessions, if allowed, must follow Responsible Restart Ohio Guidance for Bars & Restaurants.
• The maximum number of individuals gathered in any indoor or outdoor entertainment venue shall be the lesser of 300 spectators or 15 percent of fixed seating capacity.

Variance. A sporting event may submit a plan that differs from the venue capacity requirements in this Order, in writing, to their local health department for review and also to the ODH. Verbal approvals are not sufficient. It is recommended that administrators not act to seek a variance without Board approval.

As always, Walter | Haverfield attorneys remain committed to keeping you updated on developing COVID-19 guidance and will continue to provide information and resources as guidance and recommendations evolve.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948

August 17, 2020 

The Ohio Department of Health (“ODH”) posted guidance to its website addressing the use of face shields including use in schools. In the ODH Face Shields FAQ, ODH addresses the use of face shields in lieu of masks or cloth face coverings. As addressed in our August 14, 2020 client alert, “Ohio School Mask Orders Update,” ODH highlights the Centers for Disease Control and Prevention (“CDC”) recommendation that face shields not be used as a substitute for masks due to the lack of evidence of face shield effectiveness in controlling the spray of respiratory droplets.

With regard to use of face shields in schools, ODH notes the limited exceptions set forth in the K-12 facial covering order released by the Interim Director of the Ohio Department of Health on August 13, 2020 (the “Order”), and provides that school-wide use of face shields instead of masks is not appropriate and does not meet the requirements of the Order. Instead, ODH states that a face shield is only appropriate in circumstances where an allowable exception to the Order applies. ODH’s guidance acknowledges that certain circumstances may require an alternative to a mask, and that in those instances if a face shield is used, it should be worn against the forehead with no gap, wrap around the sides of the face, and extend below the chin. Further, ODH notes that when a face shield is being used as an alternative to a face mask, social distancing of at least six feet should be maintained, as well as other preventive measures, such as frequent hand washing or use of hand sanitizer and increased cleaning of commonly touched surfaces.

As recommended in our August 14, 2020 client alert, district guidelines should address the topic of face shields and include a requirement that face shields only be utilized where an exception to the use of cloth facial coverings exists. If an exception to the face covering requirement is applicable, the student or employee instead could wear a face shield, if appropriate, based on the activity being engaged in by the individual. Documentation of the use of a face shield as an exception to the general facial coverings mandate should be maintained.

As always, Walter | Haverfield attorneys remain committed to keeping you updated on developing COVID-19 guidance and will continue to provide information and resources as guidance and recommendations evolve.

Megan Greulich is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

8/14/2020

On August 13, 2020, the Interim Director of the Ohio Department of Health (the “Director”) issued an order requiring use of facial coverings in K-12 schools (“Order”). The Order, which became effective on Friday, August 14, 2020, wields control over any conflicting provisions of the Director’s July 23 statewide mask order and will remain effective until the Governor-declared state of emergency no longer exists or the Director rescinds or modifies the Order. The Order requires that, with limited exception, all students, faculty, and staff in any child care setting, school building, or other location that provides care of education to any child in kindergarten through twelfth grade wear facial coverings. A facial covering is defined as any material that covers an individual’s nose, mouth and chin. Facial coverings must be worn at all times when:

1. In any indoor location, including but not limited to, classrooms, gymnasiums, offices, locker rooms, hallways, cafeterias, and/or locker bays;
2. Outdoors on school property and unable to consistently maintain a distance of at least six feet from individuals who are not members of their household;
3. Waiting for a school bus outdoors and unable to maintain a distance of at least six feet from individuals who are not members of their household; or
4. Riding a school bus.

The Director’s Order also sets forth very limited exceptions for circumstances in which the requirement to wear a facial covering does not apply, including when:

1. The individual has a medical condition, including respiratory conditions that restrict breathing, mental health conditions, or a disability that contraindicates the wearing of a facial covering;
2. The individual is communicating or seeking to communicate with someone who is hearing impaired or has another disability, where an accommodation is appropriate or necessary;
3. The individual actively is participating in outdoor recess and/or physical activity where students are able to maintain a social distance of at least six feet or athletic practice, scrimmage, or competition that is permitted under a separate Department of Health Order;
4. The individual is seated and actively consuming food or beverage;
5. Where students and staff can maintain distancing of at least six feet and removal of the facial covering is necessary for instructional purposes, instruction in foreign language, English language for non-native speakers, and other subjects where wearing a facial covering would prohibit participation in normal classroom activities, such as playing an instrument;
6. Students are able to maintain a distance of at least six feet, and a mask break is deemed necessary by the educator supervising the educational setting;
7. The individual is alone in an enclosed space, such as an office; or
8. When an established sincerely-held religious requirement exists that does not permit a facial covering.

The exemptions set forth in the new Director’s Order are noticeably more expansive than the exemptions articulated by the Ohio Children’s Hospital Association’s and the Ohio Chapter, American Academy of Pediatrics’ joint letter, as articulated by Governor DeWine on August 4, 2020, but more narrowly tailored than those previously set forth in the statewide mask mandate. Additionally, the Director’s Order expands the individuals to which the mandate applies.  Districts should maintain documentation of any exception that is granted, including the reason for granting the exception.

While the mandate does not specifically address use of face shields, it is likely that many face shields will not meet the definition of “facial covering” as set forth in the Order, as many do not cover the chin. In such circumstances, face shields are only appropriate in instances where an exception from the face covering requirements apply. Additionally, the Centers for Disease Control and Prevention (“CDC”) currently do not recommend the use of face shields as a substitute for masks. As a result, we recommend that district guidelines address the topic of face shields and include a requirement that face shields only be utilized where an exception to the standard use of facial coverings exists. If an exception to the face covering requirement is applicable, the student or employee instead could wear a face shield, if appropriate, based on the activity being engaged in by the individual. Documentation of the use of a face shield, as an exception to the general facial coverings mandate, also should be maintained.

Further, on August 10, 2020, Governor DeWine signed Executive Order 2020-34-D, impacting preschool facial covering requirements. This Executive Order, in effect for 120 days, adopted revised Ohio regulations that specify the following for preschools:

• All preschool administrators, staff members/employees must wear a face covering while indoors, unless not medically appropriate;
• Face coverings, expressly include for preschool settings, cloth masks or plastic face shields that cover the individual’s nose and mouth (preschool staff can wear face shields instead of masks);
• Preschool students are excluded from the “school-age” definition and are not required to wear facial coverings.

Given the new Orders, districts will need to review existing policies, procedures and forms regarding use of face coverings in schools in order to ensure that they remain compliant with the new directives and properly address all necessary locally-developed standards for use of facial coverings in schools.

Megan Greulich is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

August 4, 2020 

On August 1, 2020, the Ohio Department of Health (ODH) issued a third Order related to contact sports, which extends the expiration date of its second amended Order. Notably, unlike previous orders that had a set expiration date, the third Order will remain in effect until either the State of Emergency declared by the Governor ends or the Order is rescinded or revised by the Director of the Ohio Department of Health.

In the latest Order, contact training and practice may continue for all sports.

Competitive games and tournaments are permitted for non-contact sports, subject to the previously existing guidelines relating to symptom assessment, distancing, avoiding shared equipment where possible, and mask wearing.

For contact sports, no practices or open gyms with other teams or groups or inter-team (school vs. school) scrimmages or competitive games are permitted unless all involved teams comply with Section 10 of the Order (see below for more information).

In the Order, ODH defines contact sports as one of the following: football, basketball, rugby, field hockey, soccer, lacrosse, wrestling, hockey, boxing, futsal and martial arts with opponents.

In addition to the existing guidelines, Section 10 provides stringent requirements, which include:

• Denial of participation for anyone displaying symptoms within 72 hours of the event
• Acknowledgment of receipt of materials explaining Covid-19 precautions
• Receipt of a negative test before traveling to the competition
• Testing of all participating athletes and team staff members no more than 72 hours prior to the competition
• Denial of participation for all individuals or teams with a member testing positive and with strict adherence to quarantine guidelines
• Daily temperature checks
• Repeated testing at 4 days and every 2 thereafter for tournaments of a longer nature
• Separate team areas for pre-competition practice
• Daily certification to the local health department that protocols are being followed
• Maintenance of a contact log for all participants, and provision of the log to local and state departments of health upon request
• Denial of access to spectators
• Communication to and coordination with the local health department upon learning of a positive case

School districts will need to conduct careful planning and oversight as well as develop and maintain all required documents to meet the state’s requirements. Furthermore, consultation with counsel is advised prior to entering into any agreement or acknowledgement requested by the Ohio High School Athletic Association (OHSAA).

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

Christina Peer is chair of the Education Law Group at  Walter | Haverfield. She can be reached at  cpeer@walterhav.com or at 216-928-2918.

July 17, 2020 

To assist school districts in developing remote learning plans for the 2020-2021 school year, the Ohio Department of Education recently released guidance addressing student attendance during remote learning activities.

At the outset, ODE urges school districts to maintain student and parent contact information, learn about families’ digital access, and build collaboration and trust. Additional guiding principles include prioritizing health and safety, emphasizing student engagement, using data to drive decision-making, leveraging community partnerships, and supporting the whole child.

Remote learning plans, as outlined in HB 164, must include “how the school will document participation in learning opportunities.” ODE offers the following considerations for tracking attendance:

• Hourly Increments: Attendance must be converted and reported in hourly increments. However, it is not necessary to take attendance hourly, or even daily. Instead, districts can opt to monitor attendance weekly (or using another regular schedule) to provide flexibility for families.
• Remote Learning: Attendance hours will vary by the type of remote-learning activity.  Synchronous teacher-led remote learning can equate to hour-for-hour in-person instruction, but asynchronous self-directed remote learning may require analyzing “evidence of participation.”  Evidence of participation can include daily logins, student-teacher interactions, and assignment completion. Using assignment completion as evidence of participation means determining how many hours an assignment should take a typical student to complete, and counting that time as attendance hours. For example, a long-term project may be expected to take eight hours over two weeks, and will count for eight hours of student attendance, even though some may finish in more or less time. Daily or weekly tasks (e.g. journaling) can also be logged according to how much time students are expected to spend on the activity (i.e. 15 minutes per day equals 1.25 hours per week). Although the default is to assume attendance, if there’s no evidence of student exposure, engagement or participation, that child should be marked as absent for the hours assigned to that remote-learning task.
• In-School Learning: Attendance for in-school activities should be taken the same way as normal when students are in-school. ODE cautions that remote learning should not be used to make up in-school absences, unless a student is in quarantine or in-school learning is discretionary.

ODE also encourages districts to update their attendance and absenteeism policies to include additional excusals for student absences related to remote learning and/or the pandemic. Examples of additional reasons to excuse student absences include: temporary internet outages, unexpected technical difficulties, and “student absence due to COVID-19.” Districts should also consider updating the definition of medically-excused absence to allow additional days excused without a doctor’s note and/or to extend the timeline for receiving such excuses for quarantined students or those experiencing symptoms. ODE emphasizes that district policies must avoid penalizing students who contract COVID-19.

Moreover, ODE encourages flexibility in record-keeping and reporting via student information systems. Although expected student calendar hours must typically be recorded as either “in attendance,” “excused absence,” or “unexcused absence” for specific days, schools may adopt procedures to ease record-keeping and data entry. A student’s absence for a three-hour activity, for example, can be recorded for one day instead of split across the five days assigned to that remote learning task.

Finally, some students with IEPs or Section 504 Plans may need COVID-19 attendance accommodations depending on their individual circumstances.  Please reach out to your district’s counsel if you have questions about attendance accommodations or any other aspect of this guidance.

The full guidance released by ODE is available here.

Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mpearlmutter@walterhav.com or at 216-619-7861.

Kathy Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

July 6, 2020 

On July 2, 2020, the Ohio Department of Health (ODH) and the Ohio Department of Education (ODE) released new guidance regarding the re-opening of schools for the 2020-2021 school year. This guidance, which is titled “COVID-19 Health and Prevention Guidance for Ohio K-12 Schools,” provides five basic guidelines for school districts to follow when developing their re-opening plans.  While the Guidance does include some mandatory directives, in most areas, decisions regarding how the Guidance will be implemented is left to school districts. Each of the five guidelines raises various issues for school districts with respect to policy and operations. The following is a summary of each guideline, along with issues for consideration.

Vigilantly Assess for Symptoms

The Guidance suggests that all students (and their caregivers), staff, and volunteers (if permitted at all) conduct daily health checks prior to going to school. This check should include a temperature check and assessing for other symptoms.  Anyone with symptoms should stay home. The Guidance states that schools may choose to take temperatures of students and staff members as they enter the building.  Districts will need to consider whether it is feasible to conduct a temperature check for all students as they enter or whether they will rely on parents to conduct these checks at home.  Districts will need to have the necessary equipment, such as thermometers, to assess symptoms even if most checks are occurring at home.  Districts will also need to consider how (or if) they will conduct follow-up with families regarding a student’s absence when a student is called off due to illness.

Schools will need to establish an area in every building to isolate any student or staff member who begins to exhibit symptoms at school until the individual can leave the building. Considerations include:

• Maintaining an area that is separate from the nurse’s office so that other students who require medical attention or medication are not exposed to the symptomatic individual
  • If this is not possible, establishing an area in the nurse’s office where the symptomatic individual can be isolated (consider curtains that can be drawn around a cot, etc.)
  • Having others who need medical assistance report to a separate area if a symptomatic individual is in the nurse’s office (even if the area is curtained off)
• Maintaining a supply of masks to be provided to any individual exhibiting symptoms (unless medically contraindicated)
• Ensuring that the employee monitoring anyone showing symptoms has appropriate PPE
• Developing a protocol for cleaning any areas where a symptomatic individual waited prior to leaving the building and areas the individual accessed during the day

Schools are also required to refer symptomatic individuals to a health care professional or a testing site.  Districts should compile appropriate referrals and document that the referral has been made.

In the case of a positive COVID-19 individual, or a suspected positive COVID-19 individual in a school building, the school is to notify the local department of health for further guidance, including assistance with notifying individuals who may need to quarantine.  FERPA contains an exception that allows the disclosure of personally identifiable information in the event of a health/safety emergency.  Districts should develop a protocol for notifications and update policies accordingly. 

Districts should put plans in place to address situations where a number of students and/or staff members must self-quarantine based on possible exposure (regardless of where the exposure occurred).  In other words, students who must self-quarantine must still have appropriate opportunities for continued learning.  Districts will also need to determine how to handle staff absences due to illness or the need to self-quarantine after possible exposure.

Districts are also urged to reconsider any policies that penalize students or staff members for absences or that reward perfect attendance.

Wash and Sanitize Hands to Prevent Spread

Handwashing is an effective way to prevent the spread of COVID-19 for one simple reason: it kills the virus.

Students, staff, and volunteers should practice frequent handwashing for at least twenty (20) seconds, before and after eating, as well as after using the restroom. Schools must provide opportunities throughout the day for handwashing.

Each school building will need to determine the logistics of frequent handwashing while maintaining social distancing. Schools will have to plan and coordinate the use of restrooms by students, staff, and volunteers.  Schools can consider the use of portable handwashing stations in order to allow for frequent handwashing while practicing social distancing. Particularly for young students, teachers will need to instruct on appropriate handwashing technique. Staff members will also need to supervise young students to ensure that proper handwashing is actually taking place. It is possible that building schedules will need to be altered in order to accommodate increased handwashing.

To supplement handwashing, schools must provide hand sanitizer (60-95% alcohol based) in high traffic areas, including entrances to buildings and classrooms. Also, schools must instruct students and staff to use hand sanitizer. 

Students, staff, and volunteers should avoid touching their mouths, noses, and eyes because the virus easily enters the body through membranes, and schools should consider providing signage and instruction to help reinforce these guidelines for preventing the spread of COVID-19.

Thoroughly Clean and Sanitize School Environment to Limit Spread on Shared Surfaces

Disinfecting surfaces reduces the spread of disease, including COVID-19. Schools should clean surfaces frequently and consider developing a disinfection plan. In addition, the following guidelines are also recommended for school environments:

• Use EPA-approved disinfectants against COVID-19, while being mindful of each district’s policies that address cleaning products and the use of certain chemicals in the school setting.
• Pay attention to high touch areas and shared materials.
• Provide sanitation wipes and/or disinfectants in each room and common space.
• Ensure sanitation wipes and disinfectants are labeled as for use against COVID-19.
• Minimize sharing of supplies and materials as much as possible.
• If supplies must be shared, sanitize between each user.

When determining how to disinfect the school environment and shared surfaces, school teams are encouraged to include custodial staff in these discussions. Additionally, protocols should be developed by each teacher to limit the use of shared materials and to disinfect any materials that are shared between student uses.  Additional considerations include:

• The potential need for investment in multiple sets of the same materials in order to allow time for disinfection between uses
• Protocols for shared spaces such as the gym, library, music room, art room, etc.
• Protocols for lunch and recess

Additionally, students should never be responsible for disinfecting materials. This task should always be performed by a staff member and  could lead to the need for additional staff members to perform custodial functions, or for teachers and paraprofessionals to take a larger role in cleaning work spaces and materials. Districts should be aware of potential labor/management issues that increased cleaning protocols could create.

Practice Social Distancing

Keeping a distance of six feet or more between people has been exceptionally effective against the spread of COVID-19 by minimizing the chance of coming into contact with respiratory droplets. This is particularly important in areas of loud speaking, singing, athletics or instrument playing.

The Guidance states: “School staff should try when possible to maintain 6-foot social distance among students, staff, and volunteers in all school environments, including classrooms, hallways, restrooms, cafeteria, playground, drop-off and pick-up locations, and school buses. Where social distancing is difficult, face coverings are even more essential.”

Notably, while the six feet of distance between people is strongly recommended, it is not mandated by the guidance. Instead, six feet of distance should be maintained “when possible.”  This leaves school districts to determine how to balance the need for six feet of distance with the need to return students to school for in-person instruction.  Districts should plan to maintain six feet of distance in all situations (and environments) where it is possible to do so.  This will almost certainly result in the need to use classroom space effectively and potentially for smaller class sizes. The Guidance notes that where maintaining six feet of distance is not possible, face coverings are even more critical. In making this statement, the Guidance acknowledges that it will not always be possible to maintain six feet of distance in the school setting; but that every effort should be made to do so whenever possible. When six feet is not possible, three feet is considered an acceptable minimum by the American Academy of Pediatrics if face coverings are utilized and individuals are asymptomatic.

In addition to using signs and floor markings as social distance reminders, it’s important to rethink group situations and be creative with the use of space and time.

• Avoid using shared materials or shared spaces (lockers, cubbies, etc.) and reduce mixing student groups.
• Review schedules and group transitions to minimize groupings or movement.
• Group students in ways that minimize movement between rooms and in common spaces.
• Consider having teachers move from class to class instead of students.
• Food could be delivered and consumed in classrooms instead of using the cafeteria format.
• Analyze each classroom for square footage and determine the maximum number of students and staff who can occupy the rooms at any given time while remaining within determined health guidelines.
• Consider strategic use of non-classroom spaces for instructional purposes, such as cafeterias, auditoriums, gymnasiums, and outdoor areas.
• Consider split-scheduling, alternating days, weekend or evening uses, or staggering start/end times.

A key area of concern, from a social distancing perspective, will be school transportation. The Guidance states that school officials “should endeavor to do the best they can to keep social distancing on buses” and tacitly acknowledges that it is unlikely that six feet of distance can be maintained on buses. That being said, schools can consider the following:

• Assigning students to seats
  • Have members of the same household sit together
  • Have members of the same neighborhood sit together
• Requiring the use of masks on buses for all students is strongly recommended by the Guidance.

Districts will also need to determine how buses will be cleaned/sanitized between runs.

Districts will also need to determine how school visitors will be handled.  Options include:

• Prohibiting visitors (except in the case of an emergency)
• Allowing visitors, but requiring a health screening prior to entering the building
• Allowing visitors, requiring a health screening prior to entering the building and limiting visitor access to certain areas of the building

Districts will need to determine how to handle events such as open houses, parent/teacher conferences, kindergarten orientation and IEP/Section 504 meetings.  Virtual options exist, but will require advance planning.  Additionally, districts should be prepared to make exceptions for parents who do not have access to technology.

Implement Face Coverings Policy

As already indicated, face coverings are critical in preventing person-to-person virus spread, especially when community spread is elevated and social distancing is not possible.

The Guidance requires all school staff and volunteers to wear cloth/fabric face coverings/masks that cover an individual’s nose, mouth, and chin, “unless it is unsafe to do so or where doing so would significantly interfere with the learning process.” If a staff member meets an allowable exception and is excused from this requirement, the District is required to provide the local health officials with written justification, upon request. Exceptions expressly include:

• Facial coverings in the school setting are prohibited by law or regulation;
• Facial coverings are in violation of documented industry standards;
• Facial coverings are not advisable for health reasons;
• Facial coverings are in violation of the school’s documented safety policies;
• Facial coverings are not required when the staff works alone in an assigned work area; or
• There is a functional (practical) reason for a staff member or volunteer to not to wear a facial covering in the workplace.

When masks would hinder the learning process, present a health or safety issue, or for those individuals who have difficulty wearing cloth masks, the Guidance recommends “face shields that wrap around the face and extend below the chin.” These may be most appropriate when interaction and communication with students would be negatively impacted by limited face visibility, such as with students with disabilities, English language learners, during foreign language instruction, or possibly during certain extracurricular activities.

Unlike staff requirements, districts will have discretion regarding student face coverings. The Guidance recommends that students in 3^rd grade and up wear face masks unless they are unable to do so for a health or developmental reason. But the Guidance notes that the majority of experts opine that children as young as kindergarten can wear masks with consideration of developmental and physical circumstances.  Districts will need to develop a policy for face coverings for all students and share the policy with families prior to the start of the school year.  If face coverings are required, schools should determine how they will address students who do not bring a face covering to school, students whose face coverings become soiled or unwearable while at school and students who refuse to wear a face covering.

These guidelines leave districts with many decisions regarding facial barriers, including face masks and face shields. Districts must develop policies and procedures in accordance with the Guidance for staff, as well as students, and visitors that address areas of ambiguity, including:

• examples and/or lists of permissible exceptions(such as general positions that have industry standard conflicts), what the district will consider unsafe for mask wearing, and how the district will define “significant interference with the learning process”
• parameters for staff regarding permissible times/conditions to take a break from wearing a mask
• under what circumstances students and visitors will need to wear masks (in classrooms, lunch, special events, hallways, meetings, threshold if contingent on local community spread, etc.)
• how parental refusal and/or student discipline related to such requirements will be handled, and applicable procedures to challenge such
• specific procedure for the analysis of individual circumstances and necessary accommodations, while developing steps to avoid discrimination, bullying, or retaliation against individuals who are unable to wear masks
• requirements as applicable to recess, gym, transportation, student drop off/ pick up, etc.
• available options for individuals who cannot meet established expectations.

Reopening will be no small task, as Districts will need to consider the ever-evolving medical science, individual needs, community safety perceptions, and potential labor/management issues. It is strongly recommended that districts collaborate with all stakeholders, including parents and relevant union representatives on such policies and procedures.  Districts should also review current policies and update any policies that are not in alignment with the procedures that will be utilized for the 2020-2021 school year.

If you have any questions about this new guidance regarding the re-opening of schools for the 2020-2021 school year and how it impacts your school district, students and teachers, please reach out here.

June 30, 2020 

On June 30, 2020, the Ohio Department of Education announced that preschool students with disabilities who were identified under the category of “developmental delay” for the 2019-2020 school year will be able to transition to kindergarten for the 2020-2021 school year without undergoing an evaluation to determine a school-age disability category.  These students can be reported in EMIS when they enter kindergarten for the 2020-2021 school year with the “developmental delay” disability category.

This temporary change was made due to the COVID-19 school-building closures which made completion of reevaluations for these students extremely difficult.  The change is temporary and is in effect from July 1, 2020 through December 1, 2020.  Districts must complete evaluations of any student who transitioned to kindergarten under the “developmental delay” category no later than December 1, 2020.  As of December 2, 2020, the ability to report a kindergarten student under the “developmental delay” category will end.

Districts are urged to utilize this flexibility where needed, but to complete evaluations for students identified under “developmental delay” as quickly as possible.

Christina Peer is chair of the Education Law Group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

June 30, 2020

ODE Guidance

On June 29, 2020, the Ohio Department of Education issued “COVID-19 Guidance: Data Reporting for Students with Disabilities FAQ.” The guidance addresses EMIS reporting for noncompliance events that occurred due to the COVID-19 school-building closure during the 2019-2020 school year.  The bottom line from the guidance is summarized as follows:

• No timelines have been waived due to the school-building closure (this includes initial evaluations, re-evaluations, initial IEPs, IEP annual reviews and Part C to Part B transitions).
• There are no new EMIS noncompliance codes to use when reporting that an event did not take place in a timely fashion due to the school-building closure.
• It is unclear what ODE/OEC will do going forward with respect to monitoring and/or corrective action based on noncompliance due to the school-building closure. Further guidance will be issued regarding this, but no timeframe was provided.

Notably, the guidance speaks to the circumstances under which a reevaluation can be waived.  While the guidance states that this option is “reserved for students who are accepting a diploma or who are so medically fragile that completing a reevaluation would not be possible,” the Operating Standards allow for the waiver of a reevaluation if the parent and the school district agree that a reevaluation is unnecessary.  See O.A.C. 3301-51-06(D)(2)(b).  A key take-away from this guidance for school districts is that, in the event the district has ETRs and/or IEPs that are noncompliant due to the school-building closure, every effort should be made to complete these documents prior to the start of the 2020-2021 school year.

OSEP Guidance

On June 22, 2020, the Office of Special Education Programs (OSEP) issued a Question and Answer document regarding the dispute resolution process for students receiving services under Part B of the IDEA during the current COVID-19 environment.  The Q & A document is summarized as follows:

• Dispute resolution procedures, including state complaints, due process complaints and mediations, will continue during the COVID-19 pandemic.
• Timelines for dispute resolution, including the 60-day state complaint timeline and timelines related to due process complaints (i.e., resolution period, timeline for issuance of a decision, etc.) can be extended on a case-by-case basis.
• Meetings needed for dispute resolution, including mediation and due process hearings, can occur virtually (e.g., via Zoom, Google Meets, etc.).

In Ohio, mediations have been occurring remotely even prior to the school closure order being issued in March.  ODE has provided training for impartial hearing officers to conduct remote hearings; however, the individual hearing officers have the discretion to hold the hearing remotely or to schedule an in-person hearing if social distancing can be maintained.

Additionally, on June 26, 2020, OSEP also issued a Q & A document regarding flexibility in the implementation of the IDEA’s Part B fiscal requirements in the current COVID-19 environment.  The Q & A document provides guidance to local education agencies on maintenance of effort.  Specifically, the document states that flexibility exists for meeting maintenance of effort requirements and provides guidance regarding this issue.  Districts that have specific questions or circumstances that could make MOE problematic should refer to the information in the guidance applicable to their specific circumstance.

Christina Peer is chair of the Education Law Group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

June 22, 2020 

Ohio Governor Mike DeWine signed Ohio House Bill 164 (H.B. 164) on Friday, June 19, 2020, also known as the Ohio Student Religious Liberties Act of 2019. In light of the coronavirus pandemic, H.B. 164 goes beyond its religious provisions to also address a variety of issues that Ohio school districts face as they prepare to reopen for the 2020-2021 school year. Recognizing that school closures impacted student instruction and reduced available assessment data, Ohio’s legislature provides the following exemptions and prohibitions to Ohio’s Third Grade Reading Guarantee provisions:

• Prohibits a school district/school from retaining a third-grade student who does not attain a passing score on the fall administration of the third grade English language arts achievement assessment, if the student’s principal and reading teacher agree that other assessments of the student’s reading skills demonstrate the reading competency necessary for 4^th grade promotion.
• Prohibits the State Board of Education from the annual review and upward adjustment of the third grade English language arts assessment promotion score, and, instead, requires the use of the 2019-2020 promotion score of 683.
• Exempts a teacher assigned to provide intense remediation reading services to a student pursuant to Third Grade Reading Guarantee requirements, from the training, licensure, evaluation criteria otherwise required.
• Relieves otherwise eligible public school districts from district and/or school level reading achievement improvement plan requirements (this does not include individual student RIMPs).

The relief that H.B. 164 provides is only temporary for the 2020-2021 school year. As school districts utilize these opportunities for flexibility, it is imperative that any student retention and instructional decisions remain student centered. Decisions should remain focused on data and progress with the goals of quality instruction for reading-proficient students.

If you have any questions about H.B. 164 and how it impacts your school district, students and teachers, please reach out here.