Season 4: Episode 2: Coronavirus and Our Schools – Your Top Legal Questions (Board and Staff Edition)

In this second episode of our two-part series on school districts’ obligations in light of the emerging COVID-19 pandemic, we take a look at your top legal questions relating to school staff. Lisa Woloszynek and Miriam Pearlmutter are joined by Susan Keating Anderson, a partner at Walter | Haverfield who advises school districts as to labor and employment issues.  We talk about some of the critical questions faced by school districts as they close buildings and make difficult employment decisions: Are staff required to report in some way if a building is closed and students are learning from home?  What should districts keep in mind when determining whether employees should be asked to work remotely? Are hourly workers and salaried employees to be treated differently in this circumstance? In addition to the above issues, we also touch upon board meetings and public participation concerns. Join Susan, Lisa and Miriam for a remotely-recorded episode exploring these and other timely district questions.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter Haverfield. We practice school law and every few weeks we get together and we talk about the most recent legal developments in education relevant to school boards, administrators, teachers, anyone who works in education.

Lisa: One of the issues that will be addressed in this episode is whether employers should take the temperature of employees, or require employees to take their temperature at home? After this episode was recorded, Ohio Governor, Mike DeWine made statements regarding this issue in a press conference. “Listeners in Ohio should consider the statements made in the governor’s press conference. Any subsequent orders or directives from government authorities and consult with legal counsel is needed regarding this issue.” Thank you for joining us today for our second part in our series on the Coronavirus epidemic and its effects on school districts. Previously, we discussed some common questions we’ve been receiving regarding students and parents. Today we’re going to talk about our more frequently asked questions related to board operations and school staff. Joining us today is Susan Keating Anderson, our partner at Walter | Haverfield, who advises school districts on labor and employment related issues. Welcome Susan.

Susan: Thank you Lisa. I’m happy to be here despite the circumstances.

Lisa: Yes, absolutely. Thank you for joining us. I’m sure you’re swamped with questions and we really appreciate you taking some time out today to help discuss some of these issues for our listeners.

Susan: Yes, I’ve definitely been getting a lot of questions in the last few days, questions regarding school board operations, governance issues, certified and classified staff personnel as it relates to the school closure and just general COVID-19 issues.

Miriam: Excellent, the first thing that you mentioned board operations. Let’s briefly just talk about participation requirements for board meetings. We have been getting quite a few questions about this topic, about how to conduct these board meetings during this time when we are all trying to practice social distancing and safety measures. Susan, you have been getting questions about board governance issues, is that right?

Susan: Absolutely. As the state and federal government have come out and put restrictions on mass gatherings, the questions that are then asked to me by my clients are, “Well, what about our public board meetings and what are we allowed to do there?” Obviously public board meetings implicate those quarters oftentimes with both the board members as well as public participation. Most recently one question that I’m getting on an almost daily basis is, whether or not boards must allow the public to participate in board meetings and to attend in person. The answer to that question is “no”. Board members do not have to allow public attendance in person, so long as they are able to make that board meeting accessible to the public in another way. What we’re seeing a lot of is our Boards of Educations are making arrangements to live stream their meetings so that they are accessible to the public, but public attendance in person will not be allowed in that instance. It is important for Board of Educations to remember though that if they’re going to change their normal protocol, that they do give notice to the public in that regard. The notice provisions relating to regular meetings and special meetings have not changed in any way related to COVID-19.

Lisa: Thank you for that summary, Susan. One thing I just want to point out for our listeners is, a lot of the specifics that we’re going to be talking about today really do relate to Ohio laws. For our listeners in other states, make sure that you are checking your local and state laws related to board meetings and public access and things like that, so that you have the specific answers for your state. Whereas, just keep in mind a lot of what we’re referencing during this episode today is going to be very Ohio specific. To keep us going, one question I’ve been hearing a lot is regarding voting of course, because typically boards have to be present in person to make their votes. Certainly with the social distancing the question we’re getting is, “Can we do that telephonically?” Susan, have you been providing any input on this area?

Susan: Absolutely, and as you mentioned it has been the cardinal rule under the Ohio Sunshine Laws and Open Meetings Act, that board members must be in attendance in person and or to be counted into the quorum and able to hone on matters. In just the last few days, the Ohio Attorney General had released an opinion that does state that under the Ohio Open Meetings Act, board member attendance either by telephone or online through some sort of Skype or Zoom meetings, would be permissible and would still meet the requirements of Ohio law with respect to open and public board meetings. The question of voting is an interesting one because the Ohio Attorney General’s opinion does not explicitly state that members that attend by telephone or via virtual attendance can vote and that the vote would be valid. However, if you read over the opinion, I think that the most reasonable interpretation of the opinion is that voting may occur even if members are attending by phone or video conferencing. I would say though that care should be taken by Boards of Ed, that action taken when board members are attending this way should really be taken only on those matters of urgency, and they should not be conducting general business that is not of a time sensitive nature in this manner. Just to reiterate Lisa’s point, this is all based on Ohio Sunshine Laws. If you are listening from outside of Ohio, you will definitely want to take a look at your own state laws that would govern open meetings.

Miriam: That’s excellent, excellent advice, Susan. Of course now Ohio schools have closed until at least April 6th. I’m sure that you are fielding a lot of questions about the impact of this closure.

Susan: Well, I definitely I am. Frankly as a mom of an elementary student, I’m living the impact of the closure personally. Many of the issues that I’m being asked about by our district clients do relate to staffing, both teachers and classified staff members, and whether they’re required to report during the time that the schools are closed to students. There was initially some confusion about this because when Governor DeWine first announced the closure, he used the term “extended spring break”. I think that immediately raised question as to, “Well, if it’s a spring break, are teachers required to report because they don’t report during a typical spring break period?” Governor DeWine and his administration did quickly correct that, I think within a day or so and communicated that the closure meant really only closed to students. That during the closure, educational opportunities were expected to still be provided to students by the districts. That staff and teachers were expected to still report during the closure, within whatever parameters district administration determined to be necessary to meet the educational needs of its students and of course with consideration of the safety of all district personnel.

Lisa: Yes, I’ve been hearing a lot about these closures and certainly you brought up a key point about how they’re being characterized. We talked about in our student episode, that ‘spring break’ language certainly sent a lot of people into confusion of what’s required and not required. The other thing I’ve been hearing raised is if employees are not reporting, should they be paid during this time? Are these closures considered calamity days that we see a lot, especially in like northeast phase where we have a lot of weather closures, are these calamity days under different provisions? What have you been fielding with that, Susan?

Susan: There have been a lot of questions on this front as well. I will say that, I have had some unions take the position that this closure is a calamity day situation; although, I vigorously disagree with that as a general principle. Again, because of the use of the word ‘extended spring break’, I do understand why there might have been some confusion on this issue. Now that state administration has made it clear that the closure only relates to students not attending class and not going to the school facility for class, staff and teachers are still required to report. Really, this time period should be counted as regular contract days for teachers and classified staff, whether they’re working from home or onsite. Even with the understanding that our teachers are probably not doing as much as they would normally do in a normal contracted day, but certainly they are expected and required to prepare educational opportunities and prepare educational materials for their students during the closure. Because these are really just to be considered regular contract days, if staff members need to take leave to care for their children or because they themselves are sick, then the leave should be administered as it would normally be in accordance with relevant CBA provisions and board policy provisions. I think this is probably a good chance to know that there is a federal bill in the works called the Families First Act, that has passed the House, but has not yet passed the Senate. But if that does pass, and I certainly do expect that it will pass in substantially similar form to the House Bill, FMLA benefits and additional paid lead benefits would be provided to employees who do need to stay home to care for their children while the schools are closed. Again, that bill is not actually been passed into the final approval and final form. That’s just something that we all need to keep an eye on in the next few days and coming weeks.

Lisa: Right. Those are great points. Many districts are allowing teachers to work from home during this time we’ve found, at least starting part of this period. Districts are also going to want to be clear on its expectations for work hours. It’s like communication requirements are, productivity goals, expectations for responding to emails, phone calls, schools really are going to want to ensure that employees have a way to track their hours and documents the services that they’re providing. We talked a lot about that in our students episode, but also looking at these issues through the lens of different district collective bargaining agreements. Obviously, there’ll be different components there that districts need to weigh and be open to open communication and collaboration with their teachers unions. It’s going to be important. What about our classified staff, how are those staff members being handled a little bit differently at this point, who are not continuing to come up with lessons or do online learning with students?

Susan: Well, I think much of what you just said Lisa is still applicable to classified staff, particularly when you’re talking about looking at the manner in which you manage your classified staff during the closure through the lens of your CBA and your employment contract and your board policies to determine whether there are parameters placed on, for instance, minimum hours that staff members need to be afforded or the job responsibilities that may be assigned to them. Certainly open and consistent, transparent communication with your classified unions, and hopefully, collaboration with those unions would be occurring so that everybody is on the same page and everybody is working through these issues together. I do think, though with respect to classified staff and I think one of the questions that we get because with classified staff is oftentimes they are paid hourly. In general, hourly employees are not required to be paid for work, unless they actually work those hours versus a salaried employee. That’s a different situation. Governor DeWine has made very clear in his communication that he wants to see as little disruption to classified staff members as well certified staff members working conditions, including their compensation. What he has said is that classified employees should continue to report to school and be paid consistent with their CBA. Now, I think the devil’s in the details of reports at school and that really is up to local administration, district administration to determine what reporting the school looks like. For instance, employees such as custodians may still be required to be in the building and doing extra cleaning and that sort of thing. There may be ample work for them to do but your cafeteria workers, there may not be as much work to do. Again, I think as long as district administration has determined that they’re reporting to work is either some semblance of coming into work or being available during those contract days, those employees would still be paid as they would normally be paid under their normal contract days.

Miriam: What about employees with supplemental contracts?

Susan: This is a question I’ve gotten just in recent days. Supplemental contracts are a little bit different animals from your regular teaching contracts or your non-teaching contracts. With supplemental contracts, there’s not really clear guidance, but the issue is if you have a supplemental contract for the coach of high school wrestling, and all of your high school wrestling events has been canceled, that coach really isn’t doing any work under their contract. I think what is reasonable in that situation and what I’ve been advising is, to pay those employees at a prorated amount under their contract for the work that they’ve actually been able to accomplish under the supplemental.

Miriam: Okay, interesting. What about EMIS issues and attendance?

Susan: When it comes to that, we do have some guidance from the Ohio Department of Education, who has said that during this period of closure students will be considered to be in attendance full school days during this time. Because obviously, it would be difficult for districts to track hourly attendance by students each day. That’s far what that actually looks like and EMIS reporting, we don’t quite know that but BOE has said that they will be issuing additional guidance when it comes to that. In terms of spring breaks that have already been scheduled, there are many districts who spring breaks fall during the midst of exposure. Then there are some districts that have spring break in April outside of the existing enclosure time period. What’s been said with respect to that is that schools are not expected to change their school calendars. If there’s an existing spring break during the school closure, that is to still be or can still be considered spring break. If a school district has spring break in mid-April after the closure is done, and assuming students are back at school at that time, that spring break can still move forward. If the Board of Education decides to make changes to the school calendar with respect to that, they certainly can do so. If they are going to do so though certainly, they’re going to have to have some discussions with your unions with respect to what those changes would look like and what the impact would be on their classified and teaching staff.

Lisa: Certainly, that’ll be a developing issue too as we see how long this closure ends up going on, I would imagine. Let’s focus for a minute and touch base about some confidentiality issues that have been coming up, such as under what circumstances perhaps a district administrator would be permitted to share the exposure testing status of an employee with others in the community?

Susan: Sure. If you’re talking about having an employee who had tested positive for COVID-19, the consideration is the same of if you have an employee who has a medical condition unrelated to COVID-19. There’s still confidentiality and privacy concerns that are attended to that, so you do not want to be disclosing personal medical information of your employees. An exception to that would be certainly reporting to someone like the Board of Health, if you have an employee who has been diagnosed with COVID-19. Even in that instance, just reporting that you have an employee that’s been diagnosed by COVID-19 that would be my initial report and not necessarily including the employee’s name unless the Board of Health requires that.

Miriam: Susan, I think this is just a good time for us to talk about general consideration these general issues would apply both to school districts that are still open, as well as to districts that are technically closed but may still have some staff reporting in like you discussed, custodians or the like, reporting in at least for some of their responsibilities. What if staff who are supposed to be reporting, what about staff members who become sick or travel, what are school districts rights or obligations with regard to those employees who may whose attendance may result in additional exposure for others?

Susan: First off, I think districts need to be communicating to their employees to the extent that employees are still being required to report to a work-site, they need to be communicating to the employees not to come to work. That is I think a general consideration for the health and safety of the work place that, “If you’re sick, stay home.” If an employee does come to work sick, I think you can send them home.

Particularly if they’re exhibiting respiratory or flu-like symptoms, you can send them home and you can charge sick leave for that period of time. Certainly, you should be looking at Board of Health guidance with respect to this. I know that that the Ohio Board of Health has issued guidance to employers with respect to sick employees, but I think the first thing is, send them home if they’re sick.

Lisa: What about asking about travel plans for staff who may be traveling or just returned?

Susan: Currently, you can ask your employees about any travel plans that they may have. I think at this point, we’re probably not going to be seeing a lot of those issues, but it’s certainly still possible. You can ask employees about travel plans, but remember to be consistent and treat all similarly situated employees the same. If you’re going to ask employees about travel plans, you’ll base them on guidance from health officials. Don’t based them on an employee’s nationality, citizenship, ethnicity, or other protected class issues. Again, if you’re making decisions about who should be working from home, those should be based on what positions and what employees can perform the essential job duties from home and what those job responsibilities are, and not necessarily based on the particular employee themselves, their age, their nationality, their disability, that sort of thing. In other words, if you’re asking questions about travel to maybe your Asian-American employees, or you’re only assigning to work from home employees that are over the age of 50, let’s say, then that may lead to a question as to whether or not you’re discriminating against those employees because of their nationality or their age. Again, keep in mind that, the Ohio Department of Health and the CDC have issued guidance relating to quarantining individuals when they have traveled and depending upon where they’ve traveled. It’s a good idea to take a look at that. If you do have employees who have recently engaged in either international or domestic travel, if an employee does admit to being exposed to COVID-19 either through travel or just through a community spread, let’s say. You absolutely may require the employee to go home and not report back for 14 days. Also in that instance, you would want to do a contact analysis to determine if that employee has come into contact with other employees in the workplace who may have also been exposed and whether other employees in the workplace should be sent home to self-quarantine as well.

Miriam: Now, one question that I’ve heard is about an employee’s temperature. This virus COVID-19, one of the symptoms is a fever. Are employers ever permitted or is that something that employers do is taking an employee’s temperature or requiring the temperature before sending somebody home? How are temperature checks treated?

Susan: It’s not something that I would advise. I don’t think that employers should get in the business of taking employees temperatures or performing medical exams as these are considered– The EOC came out with some guidance some years back related to the H1N1 virus that discussed this issue. In general, if an employee is exhibiting symptoms of sickness, I don’t think it matters if he or she has a temperature. I would send them home and err on the side of caution.

Lisa: Another question I’ve had come up is about employees return to work and whether or not an employer can you require a doctor’s note and clearance. What have you been fielding in that area?

Susan: Well, if you have an employee who has been out sick, ideally you have a general policy that relates to what you do require employees to provide when they’ve been out sick for an extended amount of time and you would be following that policy. Even if you don’t, in this instance, have a policy where you normally require an employee to provide a doctor’s note saying that they are able to come back to work. I think in these extraordinary circumstances and in this time of urgent public health concerns, if you have an employee who has been out sick and you have any question about their wellness and their ability to come back to work as a healthy employee, absolutely you can require that employee to provide you with a doctor’s note indicating that they are able to return to work. You can’t tell the employee, “You can’t come back until you show me that you’ve been tested for COVID-19.” You can’t go so far as to dictate what tests that they may go through, but you can certainly say, “We need a medical practitioner to clear you for work.”

Miriam: That makes sense. Sometimes though, Susan, employees stay home, not because they’re actually, they’ve been exposed or they’re actually ill, but because they’re concerned about exposures. What if a staff member wants to stay home preventatively?

Susan: Well, I just want to make clear in answering this question that, what we’re talking about here is an employee who’s designed to self-quarantine or are self-diagnosing that there may be a problem and we’re not talking about an employee who has demonstrated that either actual exposure to COVID-19 or symptoms of illness or that sort of thing. If you just have an employee who is just freaked out by all of this as many of us are and says, “I’m not comfortable coming to work. I’m going to stay home and self-quarantine.” If they’re not sick, then generally your sick leave provisions are not going to cover paid leave under sick leave. What you would want to look at is, “Are there other leave policies that the district has in place that might cover this employee who’s just out of anxiety or concern wants to stay home?” The most relevant one, I would say would be personal days. A lot of districts have what are called unrestricted personal days where an employee can request a personal day and does not have to provide a reason for doing so. In that case, it may be that personal days would be available to that employee to take that time off. There may be also maybe some unpaid leave provisions in your collective bargaining agreement that might apply to that. The bottom line is to consult your CBA and consult your board policies. You also do want to consider whether this employee is in a high-risk category. Generally, if an employee has a medical condition like an autoimmune disorder or something like that, that would place them at higher risk. Then the question is, is there a way to accommodate an employee staying home that may be required as a reasonable accommodation under the Americans with Disabilities Act? Just generally, if you have an employee who is very concerned and if their job could be accommodated where they could work from home, in these times of public health and just in these very unusual times, it may not be a bad idea to consider whether or not you can accommodate that. If you do fear an ABA issue at the risk of sounding like a lawyer, I would absolutely talk with the district legal counsel to just determine what you may need to do in that instance. Now, the flip side of this is, if an employee is in a scenario where they are required to quarantine by either an outside body or if they’ve been diagnosed or exposed if an employee does not have paid leave available to them, Ohio has extended its unemployment benefits so that employee for the period in which the employee is unable to work because he or she is quarantine would be eligible for unemployment benefits. Again that would not extend to employees who just have their own volition decide to self-quarantine.

Miriam: Okay, that makes sense. What about staff who want to stay home and care for family members?

Susan: Again, the specifics of the situation has to be considered, but the first question would be looking at the reasons why the staff member has to stay home to care for family members involves sickness of that family member or because the school is closed. Depending on that, you want to look at your leave policies to see if there is leave available to those employees who have childcare issues, do you see their own children being home from school. Again, sick leave generally will not cover just an employee being required or wanting to stay home to care for the child if the child isn’t sick or if the employee themselves isn’t sick. FMLA would also not just generally cover leave needed because of childcare issues. Unless of course, it’s a serious health condition involved or if FMLA military caregiver leave is implicated. As I mentioned earlier in the broadcast, there is a bill pending that has been passed by the house but not yet approved by the Senate or signed into law. That’s called the Family’s First Act, that would extend FMLA leave and paid leave benefits to individuals who either need to be quarantined themselves or who need to stay on to care for a family member who is required or recommended to be quarantined. That would also extend those benefits to employees who have to stay home for childcare purposes due to the school closing.

Miriam: Thank you, Susan. Before we end this episode, just like we talked about with student issues, I wanted to point out that this kind of stressful situation and all of these changes, especially given the trajectory of this epidemic, of this pandemic, some staff members may be subject to harassment based on national origin or other protected category. As long time listeners know, staff harassment based on nationality is something that districts absolutely have to take seriously and respond to promptly. As a school district, you certainly have policies delineating how you need to respond to harassment or any kind of impropriety. We urge all school districts to just remember and make sure that they are still following their policies and meeting all of their obligations under the federal civil rights laws.


Lisa: This has been great insights and feedback for our listeners. Thank you so much, Susan, for joining us today.

Susan: Thank you for having me.

Miriam: Okay. Stay safe, stay healthy everybody. Rate us well on iTunes and Stitcher, but most importantly, wash your hands, don’t panic and stay safe. Take care. Have a good day.

Disclosure: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.