February 18, 2021

Stressing the importance of in-person learning, The Centers for Disease Control and Prevention (CDC) recently released guidance to open and operate K-12 schools in ways that mitigate the spread of COVID-19 (COVID). The CDC’s guidance includes detailed steps for districts, which are summarized below.

1. Employ the following mitigation strategies to reduce the spread of COVID in schools: A universal mask mandate, physical distancing, handwashing and respiratory etiquette, cleaning and maintaining healthy facilities, and contact tracing in combination with isolation and quarantine. Among these strategies, the CDC recommends prioritizing mask wearing and physical distancing.
2. Assess the level of community transmission – Since the risk of COVID in schools is dependent on the level of community transmission, the CDC recommends the use of two measures to determine the risk of transmission: (1) the total number of new cases per 100,000 persons in the past 7 days, and (2) the percentage of positive COVID test results during the last 7 days. The transmission level for any given location will change over time and should be reassessed weekly for situational awareness and to continuously inform planning.
3. Utilize learning modes to best mitigate the spread of COVID – Recommended learning modes (in-person, hybrid, virtual) vary depending on the level of community transmission and strict adherence to mitigation. The following is an operational plan for schools that emphasizes mitigation at all levels of community transmission:

• K–12 schools should be the last settings to close after all other mitigation measures in the community have been employed, and the first to reopen when they can do so safely. Schools should be prioritized for reopening and remaining open for in-person instruction over nonessential businesses and activities.
• In-person instruction should be prioritized over extracurricular activities, including sports and school events, to minimize the risk of transmission in schools and protect in-person learning.
• Lower incidence of COVID among younger students (for example, elementary school students) suggests that they are likely to have less risk of in-school transmission due to in-person learning than older students (middle school and high school).
• Students whose families are at an increased risk for severe illness or those who live with people at increased risk should be given the option of virtual instruction, regardless of the mode of learning offered.
• Schools are encouraged to use “cohorting” or “podding” of students, especially in communities with moderate to high levels of transmission, to facilitate testing and contact tracing, and to minimize transmission across pods.
• Schools that serve students who are at risk for learning loss during virtual instruction should be prioritized to reopen and provide the needed resources to implement mitigation.
• When implementing phased mitigation in hybrid learning modes, schools should consider prioritizing in-person instruction for students with disabilities who may require special education and related services to be directly provided in school environments, as well as other students who may benefit from receiving essential instruction in a school setting.

4. Offer referrals to COVID testing – Regardless of a community’s transmission level, schools should refer students, teachers and staff members who exhibit COVID symptoms, or who were exposed to someone with a confirmed or suspected case of COVID, to a diagnostic testing site.
5. Perform COVID testing on-site – Schools may perform COVID testing on school property if school-based healthcare professionals are trained in specimen collection, obtain a Clinical Laboratory Improvement Amendments (CLIA) certificate of waiver, and have proper personal protective equipment (PPE).

Schools may also elect to screen students, teachers and staff members to identify infected individuals without symptoms who may be contagious in an effort to prevent further transmission. When determining which individuals should be selected for screening testing, the CDC recommends prioritizing teachers and staff over students given the higher risk of severe disease outcomes among adults. When determining which students should be selected for screening testing, the CDC recommends prioritizing high school students, then middle school students, then elementary school students.

Testing should be offered on a voluntary basis. Consent from a parent or legal guardian (for minor students) or from the individual (adult students, teachers, staff) is required for school-based testing.

Every COVID testing site is required to report all testing performed to state or local health officials as mandated by the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

6. Access to vaccines should not be considered a condition for reopening schools – The CDC says vaccinating teachers and school staff should be considered just one layer of mitigation and protection for staff and students. Even after they are vaccinated, schools need to continue mitigation measures for the foreseeable future, including mask wearing and physical distancing.

While not mandatory, the guidance from the CDC should be reviewed and considered by districts.  Districts already providing in-person instruction (whether “all in” or “hybrid”) should re-assess their mitigation efforts and decision-making frameworks to determine their alignment with the new guidance.  Districts currently providing only remote instruction should review this guidance and determine if a return to in-person instruction (either “all in” or “hybrid”) is feasible.  Districts contemplating a change in their model of instruction should be cognizant of the implications for both staff and students and be prepared to respond to these issues.

Walter | Haverfield attorneys will continue to monitor guidance from the CDC and inform you of any updates. If you have questions, please reach out to us here. We are happy to help with any challenges your district may be experiencing.

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.

Peter Zawadski is a partner at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com or at 216-928-2920.

February 15, 2021 

The Ohio Department of Education released this FAQ bulletin to help public school districts learn more about Governor DeWine’s announcement from his press conference on February 9, 2021, to create extended learning plans for students by April 1, 2021.

DeWine recently called on school districts in a press conference to formulate and submit a specific plan for all students to make up for lost time due to the pandemic. His proposed ideas include extending the current school year, extending the school day, and/or beginning the new year early. Summer programs, tutoring, or remote options are also considerations. DeWine also encouraged parents to be communicative about their kids’ current level of learning and has asked them to work in partnership with schools in brainstorming how to catch up.

ODE clarifies in its FAQ that planning for extended learning is simply a request. However, it is likely this request will appear in upcoming proposed legislation as a requirement.

Furthermore, ODE is working to develop an optional template schools may employ when formulating their plan. Elements of the template will include:

• Impacted Students – How will schools and districts identify which students have been most impacted by the pandemic in terms of their learning progress (with a focus on the most vulnerable student populations)?
• Needs – How will schools and districts identify the needs of those students?
• Resources and Budget – What resources are available to address those needs? Generally, what is the budget for the plan?
• Approaches – What approaches can best be deployed to address those needs? (This may include approaches such as ending the school year later than scheduled, beginning the new year early, extending the school day, summer programs, tutoring and remote options.)
• Partnerships – Which local and regional partners (such as educational service centers, Information Technology Centers, libraries, museums, after-school programs or civic organizations) can schools and districts engage in supporting student needs?
• Alignment – How can this plan reinforce and align to other district or school plans, including plans for Student Wellness and Success Funds, improvement plans or graduation plans?

Each district may prepare a plan according to the unique needs of its student population. To fund these plans, the ODE recommends using the federal Elementary and Secondary School Emergency Relief Funds. Temporary federal funds may also become available in the near future to assist with the costs involved in creation and implementation of plans. The ODE said it will release additional information in the coming weeks to provide further clarification, including how plans should be submitted.

At this juncture, there are more questions than answers about extended learning plans. It is clear that, based on the different learning models that have been used throughout the state this year, a “one-size-fits-all” approach will not be appropriate. Districts must make decisions based on their specific circumstances and those of their students. And, while DeWine has indicated that funding will be available, districts will also have to navigate contractual issues with staff.

You may contact the ODE regarding extended learning plans here or reach out to us for assistance here.

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.

January 13, 2021 

As COVID-19 vaccines become more available, Ohio school districts will need to decide whether to implement mandatory immunization requirements for employees. Governor DeWine has prioritized school staff to begin receiving the vaccine as early as February 1, 2021, provided superintendents agree to in-person or hybrid attendance for students. Making this determination requires careful analysis of community needs, existing policies, and collective bargaining agreements, as well as federal and state regulations. The following questions and answers may be helpful as your district considers its options.

Q: May a school district require its employees to get the COVID-19 vaccine as a precondition to continued employment?

Generally, yes. In December of 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance indicating employers do not run afoul of the Americans with Disabilities Act (“ADA”) by requiring employees to be vaccinated.[1] Specifically, the ADA sharply limits the medical inquiries and examinations that an employer can require when an individual is already employed.[2] The EEOC, however, determined that the vaccine itself is not a medical examination and by requiring an employee to be vaccinated, the employer does not implicate the ADA’s restrictions on medical examinations.

However, various exceptions are likely to arise. As explained below, administering the vaccine (or contracting with a third party for administration) may lead to pre-immunization medical questions and disability-related inquiries, permissible only when job-related or consistent with a business necessity.[3]  Further, employees who have disability-related or religion-based objections to the vaccine may be entitled to reasonable accommodations.[4]  If your school district opts to mandate vaccines for all employees, it will be important to consider individuals with disabilities and religious objections on a case-by-case basis.  Additionally, before implementing any vaccine requirements, your board should ensure it has: (1) considered its collective bargaining agreements; (2) adopted the relevant policies; (3) developed appropriate guidelines; and (4) consulted with counsel as needed.  School districts may also wish to consult with their insurance providers regarding liability concerns, if any.

Q: May a school district ask for proof that an employee received the COVID-19 vaccine?

Yes, simply asking for proof is permitted.  However, any follow-up questions about why the employee did not receive a vaccine may elicit information about an employee’s disability.[5]  A district may only ask such questions if it determines that such inquiries are job-related and consistent with business necessity.[6] To meet this standard, the district must have a reasonable belief, based on objective evidence, that either: (1) declining the vaccine will impair the employee’s ability to perform essential job functions; or (2) the employee will pose a direct threat to others by exposing them to the virus.[7] This may be a fairly difficult standard to meet in the school setting, particularly for buildings that have been open for instruction during the pandemic.  Even if the staff member poses a direct threat, however, the district would need to consider possible reasonable accommodations to reduce the risk of such a threat.[8]

In short, it is unlikely that unvaccinated employees will be considered to be a direct threat or unable to perform their job-related responsibilities.  Accordingly, school district administrators should avoid asking follow-up questions about why an employee did not receive a vaccine. As an aside, administrators should not require antibody testing (in place of vaccine proof), as the EEOC considers antibody testing impermissible in making decisions about returning to the workplace.[9]

Q: May a school district terminate an employee who refuses vaccination for disability-related reasons?

Generally, no.  Although individuals with disabilities who pose a direct threat to others are not entitled to continued employment,[10] this standard is fairly difficult to meet.  Specifically, in deciding whether the unvaccinated employee poses a direct threat, the district would need to consider the: (1) duration of the risk; (2) nature and severity of potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm.[11]  Moreover, the district would also need to determine it could provide no reasonable accommodation to mitigate the above risk or that providing such an accommodation would be an undue hardship.[12]

Many, if not most, school districts have been open to some form of in-person instruction for students at some time during the coronavirus pandemic. Accordingly, it would be challenging to show that an employee now poses a direct threat which cannot be mitigated by having the employee work remotely or some other reasonable accommodation aimed at mitigating transmission to others.  However, if a particular staff member works with medically-fragile students, for example, the above analysis may be relevant to a district’s determination of direct threat. If a reasonable accommodation is not possible, the employee may be excluded from the workplace, but termination may still not be appropriate if the employee can take leave or work out other alternative work arrangements that would mitigate potential transmission to others.[13]

Q: May a school district terminate an employee who declines to be vaccinated for reasons related to religious beliefs?

Generally, no.  Federal law requires employers to provide reasonable accommodations for religious belief or practice, unless doing so would pose an undue hardship.[14]  Undue hardship under Title VII includes anything over and above a minimal cost.[15] Depending on your district’s expected expenses in accommodating employees who refuse vaccines for religious reasons, you may consider whether the undue hardship standard would be met. Notably, district administrators should assume that an employee’s request for religious accommodations is sincere.[16] If you have an objective basis for questioning either the religious nature or sincerity of the belief, you may request additional supporting information.[17]

Determining whether to implement a mandatory or voluntary vaccine program is a challenging decision with multiple factors to consider. Please do not hesitate to contact us for any further assistance or with additional questions.

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

[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K

[2] 29 CFR §1630.14(c)

[3] Id.

[4] 29 CFR § 1630.9(a); 29 CFR § 1605.2(b)

[5] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K.3

[6] 29 CFR § 1630.14(c)

[7] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#5

[8] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K.5

[9] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, A.7.

[10] 29 CFR § 1630.15(b)(2).

[11] 29 CFR §1630.2(r).

[12] Id., 29 CFR § 1630.15(d).

[13] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws  K.7.

[14] 29 CFR § 1605.2 (b).

[15] 29 CFR § 1605.2 (e).

[16] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws  K.6

[17] Id.