Lisa Burleson Lisa-WoloszynekMarch 25, 2020 

Currently, Ohio is under a “Stay At Home” Order, which is effective March 23, 2020 through April 6, 2020. The Order, issued by Ohio Department of Health Director, Dr. Amy Acton, requires all individuals currently living within Ohio to stay at home or at their place of residence with certain exceptions. These exceptions permit individuals to leave home for essential activities, such as those for health and safety, to obtain necessary services and supplies, and to engage in certain outdoor activities. The Order’s intention is “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.”  This Order also forces non-essential businesses and operations to cease operations during the period the Order is in effect, with only some very specific exceptions. Importantly, educational institutions, including public and private K-12 schools, are to continue to perform essential functions, and the Order does not change or supersede Dr. Acton’s March 14, 2020 Order suspending student attendance in all K-12 schools from March 17th through April 3rd.

Who determines a school’s essential functions?

While school boards are ultimately responsible for school operations, Ohio Revised Code 3310.01 designates the Superintendent as the executive officer of the board.  As such, the Superintendent is responsible for ensuring the continuation of essential daily operations.  In conjunction with the district’s Treasurer, the Superintendent should identify and manage the majority of essential school functions during the mandated Stay At Home Order, but should work with the Board to address any areas that are beyond the Superintendent and Treasurer’s express and implied authority.

What is considered an essential school function?

There are a variety of school functions that are clearly understood as essential from the Stay At Home Order and other recent Orders issued by Ohio Governor Mike DeWine and the Ohio Department of Health.  At this time, the most important essential function of a school is to continue to provide and facilitate distance learning for its students.  This will include activities that are necessary to allow employees to continue to work remotely or as may be properly designated by the Superintendent.  Meal services for students will also remain essential.  Schools should continue to consider creative alternate options to providing meals, such as a reduced frequency of meal preparation, providing families with a larger quantity of meals at one time, and distributing meals in a manner that limits exposure of school staff to community members. It will also be essential for schools to continue to process payroll and benefits for employees. Board meetings would also be considered essential; however, boards should utilize the latitude granted to them to hold meetings in a manner that limits in-person contact while remaining vigilant about public access requirements and participation in voting.

Other school functions may need further analysis to determine whether they are “essential” and will need to be identified by each individual school district. Those functions include management of employee issues, such as the completion of ongoing investigations, discipline proceedings, processing requests for leave and other human resources matters.  Schools will also need to manage requests for public records and student educational records that might be made during the effective period of the Stay At Home Order. Additionally, it is important that school facilities are maintained during this time to ensure a safe and clean workplace for those essential employees who are still physically reporting to work. School districts need to exercise caution and not simply assume certain functions are or are not essential. For example, schools should consider available options like video conferencing for essential tasks, such as to continue mandated employee discipline procedures, or to complete interviews for complaint investigations.

What are the requirements while schools continue to operate for essential functions?

The Stay At Home Order requires that everyone continue to practice social distancing (six feet) as much as possible and employers implement a number of actions, including:

  • Allowing as many employees as possible to work from home
  • Actively encouraging sick employees to remain at home until, without any medication, they are fever-free without medication for at least 72 hours “AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began”
  • Ensure sick-leave policies are “up to date, flexible, and non-punitive”
  • Limit group sizes to ten people or less
  • Perform frequent cleaning of commonly touched surfaces such as workstations, counters, railings, door handles, and doorknobs

Ohio’s Superintendent of Public Instruction, Paolo DeMaria, has indicated that the Ohio Department of Education will continue to update information on its website. Also, Ohio Governor DeWine has conveyed that he intends to ask the Ohio General Assembly to approve a number of measures addressing issues ranging from forgoing state-mandated testing in schools for the rest of the school year to providing public entities with the ability to use electronic means for conducting official public meetings. State legislators are expected to continue work on these measures. We will continue to monitor and provide updates as warranted.

If you have questions regarding essential school functions or school district obligations during this uncertain time, please contact a Walter | Haverfield attorney.  We are here to help and will continue to provide updates as we receive them.

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.

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.