May 18, 2021

On May 12, 2021, Governor DeWine announced public health orders such as capacity limits, social distancing and the mask mandate will come to an end, with the exception of those for nursing homes and assisted living facilities.  The next day, the Centers for Disease Control and Prevention (CDC) announced that those who have been fully vaccinated may forgo wearing masks both indoors and outdoors, except in crowded indoor settings like buses, planes, airports, and hospitals. The announcement did not make any specific mention of school districts, which left districts in a state of uncertainty.

Over the weekend, both Governor DeWine and the CDC released updated information for school districts.  The CDC is urging schools nationwide to maintain COVID-19 health guidelines through the end of the current school year. Governor DeWine echoed the CDC’s stance in a letter sent to all Ohio school districts. In that letter, Governor DeWine said he is ordering that schools continue to follow health protocols which include wearing masks and distancing from others.  Governor DeWine’s letter stated that the decision was based on the limited number of students vaccinated and the need to “maintain consistency and model safe behavior for Ohio’s students.”

Please reach out to us here if you have questions or need clarification. We will happily assist you.

May 17, 2021 

With districts still scrambling to determine how to continue online learning for the 2021-2022 school year and beyond, many are considering implementation of blended learning. Under Ohio law, “blended learning” means the delivery of instruction in a combination of time in a supervised physical location away from home and online delivery whereby the student has some element of control over time, place, path or pave of learning.  If your district is considering this option, a completed Blended Learning Declaration form must be submitted to ODE by July 1.

In addition to submission of the declaration form by the listed deadline, boards also are required to adopt policies and procedures addressing the following topics:

1. Means of personalization of student centered learning models to meet each student’s needs.
2. The evaluation and review of the quality of online curriculum delivered to students.
3. Assessment of each participating student’s progress through the curriculum. Students shall be permitted to advance through each level of the curriculum based on demonstrated competency/mastery of the material.
4. The assignment of a sufficient number of teachers to ensure a student has an appropriate level of interaction to meet the student’s personal learning goals. Each participating student shall be assigned to at least one teacher of record. A school or classroom that implements blended learning cannot be required to have more than one teacher for every one hundred twenty-five students.
5. The method by which each participating student will have access to the digital learning tools necessary to access the online or digital content.
6. The means by which each school shall use a filtering device or install filtering software that protects against internet access to materials that are obscene or harmful to juveniles on each computer provided to or made available to students for instructional use. The school shall provide such device or software at no cost to any student who uses a device obtained from a source other than the school.
7. The means by which the school will ensure that teachers have appropriate training in the pedagogy of the effective delivery of on-line or digital instruction.

Districts have significant leeway in developing locally-adopted policies and procedures to address the listed topics, and may want to consider how existing procedures can be incorporated into blended learning policies and procedures to meet the required standards. The policies and procedures are not required to be submitted to ODE, but ODE recommends that Boards act to adopt them by the July 1 deadline. While the statute and rule do not include a deadline by which the policies and procedures must be adopted, it is important to ensure that the requisite language is in place prior to implementation of a blended learning model.

Additionally, while the required policies and procedures do not reference students with disabilities, districts must be cognizant of their obligation to provide these students access to blended learning on the same basis as their non-disabled peers.  Districts will need to consider how to make online learning opportunities accessible to students with disabilities through the use of accommodations.  Districts also will need to determine the best way to provide the specially designed instruction required by students’ individualized education plans.

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

May 17, 2021

Ohio’s health orders will end on June 2, 2021, more than a full year after Ohio Governor Mike DeWine first enacted the orders. Prior restrictions will remain in nursing homes and assisted living facilities, but all other public health orders such as capacity limits, social distancing and the mask mandate will come to an end. High vaccination rates among Ohioans 65 and older are cited as a major reason to forego the mandates.  This announcement leaves Ohio schools the choice of what rules to keep in place in order to ensure the safety of employees, students and visitors.

Two days after Ohio announced the end of COVID-related mandates, the Centers for Disease Control (CDC) updated its guidance for those who have been fully vaccinated. In general, people are considered fully vaccinated two weeks after their second dose in a two-dose series, such as the Pfizer or Moderna vaccines, or two weeks after a single-dose vaccine, such as the Johnson & Johnson vaccine. The CDC declared people who have been fully vaccinated can cease wearing masks and no longer need to stay six feet apart. No longer do fully vaccinated individuals need to be tested before or after travel, self-isolate after travel or quarantine after being around someone who has COVID-19. Notably, CDC guidance for schools has not yet been updated.

These announcements leave schools with more questions than answers – especially those districts that will be in school after June 2. However, even districts whose school year ends prior to June 2 need to consider the implications of these announcements with respect to graduation ceremonies as well as extended school year (ESY) programs and extended learning opportunities that will be provided during the upcoming summer. Two key considerations for districts when considering changes to current requirements are (1) current board policies related to face coverings, social distancing, etc. and (2) agreements with unions representing district employees related to these issues. It is likely that current policies or union agreements (or both) require face coverings and social distancing. These requirements cannot be changed without adopting a new policy and, if there is an existing union agreement, negotiating with the union. Given these issues, it will be logistically challenging for districts to change their current requirements prior to the end of the school year; however, making changes for summer is a more viable option.

In making decisions moving forward, districts should consider any orders or guidance from local departments of health along with guidance from the CDC. Districts will also have to consider that students under the age of 12 are not currently eligible to be vaccinated. Further, it is highly unlikely that all staff members and vaccine-eligible students have been vaccinated. Districts must decide whether they wish to inquire as to the vaccination status of employees and vaccine-eligible students. For employees, the Equal Employment Opportunity Commission has stated that this inquiry is not prohibited; however, follow-up questions regarding why an individual is not vaccinated should be avoided. For students, as the Ohio Revised Code already requires that immunization records be provided, there is no legal impediment to inquiring about a student’s COVID vaccination status. If districts do elect to obtain information regarding vaccination status, they must determine how (or if) this information will be utilized (e.g., different masking and social distancing requirements for vaccinated vs. unvaccinated individuals).

As with all things COVID-related, these issues will almost certainly continue to evolve throughout the summer. Walter | Haverfield attorneys will continue to monitor guidance the State of Ohio, the CDC and the Ohio Department of Education and provide 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.

April 5, 2021

On April 1, 2021, the Ohio Department of Education (“ODE”) released much-anticipated guidance regarding remote learning options for the 2021-22 school year. While legislative action to address continuation of remote learning options for the upcoming school year remains uncertain, ODE’s guidance outlines the options that exist under current law for districts wishing to continue remote learning options for students. These options will remain once the Remote Learning Plan option, which was created to address challenges associated with the Covid-19 pandemic during the 2020-21 school year, ends.

ODE’s guidance – available here – addresses four options that currently exist under Ohio law, including (1) alternative schools, (2) blended learning, (3) credit flexibility, and (4) the innovation education pilot program. Each option carries with it different procedural requirements for implementation, and districts should be aware that the remote learning options available under these programs will not provide the same level of flexibility as exists under the current temporary remote learning plans. ODE’s guidance includes a comparison chart detailing the general information about eligibility, required components, and impacts of each option, but districts are encouraged to work with legal counsel to determine which option is most appropriate to accomplish district goals. There are a few key points to note about the available options.

Alternative Schools

Authority for establishment of alternative schools is set forth under Ohio Revised Code Section (RC) 3313.533, which requires adoption of a board resolution addressing required components set forth in the statute. While alternative schools are an option for providing remote learning, they are structured to serve a limited student population, including students who are on suspension, having truancy problems, experiencing academic failure, have a history of class disruption, exhibiting other academic or behavioral problems, or who have been discharged or released from the custody of the Department of Youth Services. While this option would allow for remote learning for students falling within these groups, it does not provide a remote learning option that can be made available to all district students.

Blended Learning

Authority for establishment of blended learning is set forth under RC 3302.41 and Ohio Administrative Code Rule (OAC) 3301-35-03, which require submission of a blended learning declaration to ODE and adoption of policies and procedures as outlined in the Rule, which must be submitted with the blended learning declaration. By definition, blended learning requires a combination of school-based learning and remote online learning, and as a result, does not provide an all-remote option. There is, however, no limitation on the amount of remote versus school-based learning that must occur under a blended learning model.

More information on blended learning and access to the blended learning declaration form are available here. This year’s submission deadline for blended learning declarations is July 1, 2021. As a result, districts wishing to move forward with this option will need to develop required policies and procedures to submit to ODE with the declaration form by that date.

Credit Flexibility

Credit flexibility is addressed under RC 3313.603 and OAC 3301-35-01. Districts already should have policies and procedures in place addressing credit flexibility, which serves as an alternative option for earning graduation credit through personalized plans for each student. While this provides a remote learning option, it does not provide the same one-size-fits-all approach  permitted by temporary remote learning plans. Credit flexibility requires development of customized plans for each participating student and monitoring of the student’s progress on his/her plan. Additionally, credit flexibility cannot be the sole instructional delivery method for a student.

There also are a number of other important considerations associated with implementation of credit flexibility. For example, potential impacts on athletic eligibility requirements and district obligations related to the use of credit flexibility by students with disabilities should be considered in plan development. ODE provides a number of helpful guidance documents regarding credit flexibility, which are available here, in addition to its web conference series on the topic, which can be accessed here.

Innovation Education Pilot Program

Authority for implementation of an innovation education pilot program is set forth under RC 3302.07 and OAC 3301-46-01, which  allows a district to submit an application to ODE proposing an innovation pilot program. The Rule provides that “‘innovation means a new, experimental or disruptive educational approach that is developed based on an identified need and seeks continuous improvement in student achievement or student growth,” and lists the specific items that must be included in a district’s application, including, among others, exemptions from specific statutory provisions or rules that are necessary to carry out the program. It is important to note that this option requires the written consent of any applicable teachers’ union to be submitted to ODE along with the district’s application.

ODE has the authority to approve or deny innovation pilot program applications, and this option must be renewed each school year. Additionally, there are limitations on the statutory exemptions that can be proposed through innovation pilot program applications. These limitations are addressed in ODE’s comparison chart.

Regardless of your plans, it is important to work with legal counsel to determine which approach is most appropriate to meet your district’s goals and to ensure that all procedural requirements are met in pursuing the selected option(s). We will continue to keep you updated on any remote learning option developments as they occur. Please reach out to us here.

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.

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.