[UPDATED] OLWK Education Law Attorneys Release COVID-19 Toolkit for Minnesota Schools
COVID-19 Toolkit for Minnesota Schools
March 21, 2020 [UPDATED March 27, 2020]
As you conduct preparations in response to COVID-19, we have prepared the following toolkit that may provide assistance. Developments are fluid and occurring daily. For further details or specific questions, please contact us.
- General Guidance Regarding Coronavirus Disease 2019 (COVID-19).
- General guidance for schools can be found at the Minnesota Department of Education - COVID-10 website, Minnesota Department of Health - COVID-19 website and CDC - Guidance for Schools website.
- General guidance about coronavirus can be found the Harvard Medical School - Coronavirus Resource Center and Google COVID-19 Information and Resource website.
- Guidance and resources from the Minnesota School Boards Association may be found here.
- School Closure Guidance and FAQs. The Minnesota Department of Education has issued two publications for school closure guidance:
- Child Care for Emergency Workers. Governor Walz signed Executive Order 20-02 on March 15, 2020, which closed schools and directed that school districts provide free child care for, at a minimum, district-enrolled children aged 12 and under of “emergency workers.”
- The State has defined “emergency workers” based on a two tier system. A current listing of worker tier classifications is here.
- School Meals and New Paid Leave. On March 18, 2020, the President signed into law The Families First Coronavirus Response Act (Public Law 116-127) (FFCRA). We summarize the FFCRA's impact on schools as follows.
- National School Boards Association Guidance. On March 20, 2020, the National School Boards Association released an FAQ on FFCRA as it applies to schools regarding Meals for Students and Leave for School Employees.
- Meals. Guidance is presented on providing services to help students be food-secure while schools are closed. State MDE information can be found here.
- PAID Leave. The FFCRA created two new types of paid leave: “Public Health Emergency Leave,” (FMLA) and “Emergency Paid Sick Leave” (PSL). We summarize the new law as follows.
- Federal Guidance. The law is new (March 18), with emerging developments. The Wage and Hour Division of the U.S. Department of Labor has issued a Question and Answer Memo here. We expect further guidance will also issue very soon. We also provide the following guidance.
- Effective Date: April 1, 2020.
- Funding. Right now, private entities can take a tax credit to fund new benefits. Currently, however, school districts are excluded from the tax credit (§§7001(e)(4), 7003(e)(4)), and there are no provisions in place to provide school districts with any reimbursement for the costs of the additional leave.
- Any wages required to be paid by reason of the new FMLA or PSL are exempt from FICA (§7005(a)).
- Union Employees. School Districts likely do not have to pay fringes (e.g., pension) on payments made to union employees (but some unions may argue otherwise; contact us for additional details). Prior to implementation, we recommend giving the union notice and an opportunity to bargain.
- Exceptions. The law includes an exception for employers with less than 50 employees if it would jeopardize the viability of the business as a going concern. The government intends to issue regulations on this issue. For FMLA, the job-restoration requirements can be waived for employers with less than 25 employees, under certain conditions. Employers are subject to private FMLA lawsuits if they have less than 50 employees.
- FMLA.
- Application: all school districts regardless of the number of employees.
- The new law amends FMLA to provide 12 weeks of job-protected emergency FMLA. Leave must be due to school or daycare closure due to public health emergency.
- FMLA is available to any employee who has been employed for at least 30 days.
- First 10 days are unpaid.
- Remaining leave is paid at 2/3 of the regular rate of pay. The benefit is based on the number of hours the employee would normally work.
- FMLA leave is capped at $200 per day, or $10,000 total.
- PSL.
- Application: Applies to public entities with one or more employees.
- The FFCRA requires employers provide a bank of paid sick leave that can be used as a result of an inability to work (in the office, or remotely) due to COVID-19. This is in addition to other paid leave available to an employee.
- Uses of the sick leave may be used when the employee is under a quarantine or isolation order; experiencing COVID-19 symptoms and seeking a medical diagnosis; caring for someone subject to or advised to a quarantine or isolation; caring for a child whose school or daycare is unavailable due to COVID-19 precautions; or experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.
- Isolation and Quarantine. Further guidelines may issue from federal regulators, but we provide the following preliminary information regarding isolation and quarantine.
- CDC:
- Isolation separates sick people with a quarantinable communicable disease from people who are not sick.
- Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.
- Minnesota law. This requires a court order, but allows a temporary hold pending an order.
- Isolation "means separation, during the period of communicability, of a person infected with a communicable disease, in a place and under conditions so as to prevent direct or indirect transmission of an infectious agent."
- Quarantine "means restriction, during a period of communicability, of activities or travel of an otherwise healthy person who likely has been exposed to a communicable disease to prevent disease transmission during the period of communicability in the event the person is infected."
- CAUTION! Taking adverse employment action based on isolation or quarantine may be illegal. Minn. Stat. §144.4196.
- The leave must be available as of April 2, 2020, and be used by December 31, 2020.
- Full time employees must receive 80 hours.
- Part time employees must receive an amount based on the number of hours the employee works over a two week period on average.
- PSL leave is capped at $511/day, or $5111 in the aggregate if taken for the employee’s own illness or quarantine, or $200/day or $2000 in the aggregate if the leave is taken for the care of others or school closures.
- Bypassing Standardized Testing. The US-DOE announced Friday (March 20) that students impacted by school closures due to COVID-19 can bypass standardized testing for the 2019-2020 school year. States need to apply for a waiver.
- NOTE: On March 20, 2020, MN-DOE Deputy Education Commissioner Heather Mueller indicated the State would seek a waiver.
- School Facilities as Makeshift Hospitals. There is discussion across the country about the potential lack of hospital space, and hospitals may be asking schools for use of their gyms or other spaces as an option. If this is presented to you, we can help with any agreements to facilitate such an arrangement.
- Distance Learning.
- State of Minnesota DOE Resources.
- The MDE has published guidelines for distance learning. Additional information from MDE can be found here.
- FERPA Resources
- The US-DOE has updated guidance on FERPA and Virtual Learning (March 2020).
- The US-DOE has published an FAQ on FERPA and COVID-19 (March 2020).
- Zoom also has a Zoom for Education option, and FERPA fact sheet.
- Copyright Issues
- There is much discussion about whether reading books online aloud as part of distance learning may violate copyright laws. Publishers have temporarily altered policies. Simon & Schuster, HarperCollins Children's Books, Macmillan, Little, Brown Young Readers, Penguin Random House, Scholastic, Candlewick, Lee and Low, and Lerner have issued guidelines for use during the coronavirus pandemic. You can find their guidelines here.
- Some general guidelines (from the TEACH Act (§§110(2) and 112(f)) include:
- be sure you have a legitimate copy of the work (e.g., not copied from the internet).
- pay attention to the amount of material you can use as authorized by the publisher. You can show paintings or a short poem if it is something you would show in class, but not large portions of a textbook.
- the presentation must be part of a class session under the supervision of a teacher and be important to the content of the class.
- limit access of the online content to the enrolled students, to the extent technologically possible. Applications like open Facebook streaming and public YouTube channels are not permitted. Distribute District copyright policies to teachers (if not done already). Take measures to ensure the material is not kept by students.
- live classes and recordings are permitted.
- State of Minnesota DOE Resources.
- Children with Disabilities. The US-DOE has published a Q&A regarding providing services to Children with Disabilities during the COVID-19 outbreak. On March 21, 2020, the US-DOE published a Supplemental Fact Sheet addressing the risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities. Additional information from the MN-DOE can be found here.
- Protecting Student Civil Rights. A Fact Sheet from the U.S. Department of Education addresses the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students.
- Emergency School Board Meeting Guidance. The MSBA published guidance about holding school board meetings in the COVID-19 era. Many local public entities are using Zoom to conduct meetings. Google Hangouts Meet is also an option; there are other options. The approach to conducting public hearings using remote meeting protocols remains a developing issue (in order to accommodate public comment). Contact us for more details.
- Purchasing. In general there are no statutes that provide a basis to avoid competitive bidding based on an emergency (except for emergency repairs to buildings). Normal purchasing and contracting laws apply, including as applicable, obtaining quotes and advertising for bids. Cooperative purchasing remains an option for items needed on an expedited basis. See, for example, the Cooperative Purchasing Connection and the State of Minnesota Cooperative Purchasing Venture. Please contact us to discuss a specific issue.
