LEGAL ALERT- CORONAVIRUS: DISTANCE LEARNING AND WORKING REMOTELY

05/06/20

The recent COVID-19 (Coronavirus) outbreak has disrupted the entire nation, demanding immediate modifications to limit transmission of the virus. Throughout our country, educators are adapting daily to provide lessons and instruction to our students. Consequently, many school districts will turn to distance learning to continue serving the academic needs of students, which creates its own set of challenges with regard to working remotely and establishing expectations for teachers and others who perform their duties from home.

The Family Medical Leave Act (FMLA)

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. It ensures the continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. FMLA applies only to “workdays,” and only the amount of leave that was actually taken may be counted against an employee’s FMLA leave entitlement.

Distance learning during the COVID-19 closures presents a unique situation for teachers who are still required to complete their job duties by working from home. Thus, while teachers are not physically working in schools, they are still “working,” and FMLA assistance is not appropriate while they are bound to their responsibilities.  We expect that school districts will encounter questions from those employees who were already approved for leave under the FMLA prior to the COVID-19 pandemic and also those who seek protection under the newly enacted Families First Coronavirus Response Act, which we tackled in our last Legal Alert.

Support Strategies

Distance learning will be a new experience for many educators and students alike and will require patience as everyone adapts to the challenges it presents.  However, proactively identifying potential concerns and strategically addressing these challenges will assist in fostering a positive experience. Below are several strategies that supervisors can use to support personnel and promote effective collaboration.

Spell Out Goals and Rules

The COVID-19 outbreak provides an opportunity for leaders to revisit the goals, rules, and expectations for staff. Some teachers are now tasked with instructing their students remotely, which consists of a variety of responsibilities such as preparing work materials for students, providing online instruction, and responding to questions from parents and students via email and other platforms. Clarification of  individual and wholistic expectations is essential to a mutual understanding of responsibilities rather than assuming  expectations are “business as usual” for employees as they work from home.

Emphasize Personal Interactions

As a result of social distancing requirements, many individuals are currently confined to their homes for most of the day.  Distance learning supports our academic goals by offering an option for continued educational progression; however, numerous individuals may feel disconnected or lonesome, which can lead to lower productivity and engagement.  This is particularly true of individuals that seek reinforcement from their supervisors and building-level administrators. While it is easy to focus on tasks at hand, it is crucial to be mindful of the importance of personal interactions. Small interpersonal interactions that typically might be overlooked may now be pivotal opportunities to motivate teachers and students.  School leaders can continue to have a presence among their team members by hosting Zoom conferences, group chats, and telephone calls.  Scheduling regular meeting times, keeping others’ needs in mind, and humanizing communications are all efforts that can assist in establishing a genuine interaction with others. 

Supervisors should also remind those working remotely to be cognizant that parents, more than ever, are in frequent communication (think e-mail and telephone) seeking answers from teachers for the questions that arise as they help their children with online instruction.  We have been advised that parent advocates and constituents are communicating with the S.C. Department of Education that teachers are not being responsive – be on the look out for this challenge!

Normalize New Work Environments

Working from home involves unique challenges, such as new distractions and a higher potential for misunderstandings. Transparency with yourself and others is essential in establishing a productive work environment. It is important to acknowledge that many of us are working in non-traditional workspaces and must be flexible with challenges that may be associated with this new reality. During this time of inherent confusion, focus on creating a favorable work environment for yourself and limiting assumptions regarding the workspaces of others will be beneficial in remaining focused and committed to your work.

COVID-19 has undeniably disrupted our norms, subsequently leading to an assortment of challenges. However, this disruption provides an opportunity for schools across the nation to respond effectively by utilizing innovative platforms and continuing to meet the academic needs of students. This is the ideal time to reestablish expectations, explore new methods of instruction, and acknowledge our appreciation for one another. White & Story continues to monitor COVID-19 and related issues and will address the impacts of COVID-19 on the IDEA and special education later this week.

The U.S. Department of Labor continues to provide real time information concerning the new Families First Coronavirus Response Act.  You can access that information along with a new Q&A here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

 

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LEGAL ALERT- CORONAVIRUS: THE CORONAVIRUS AID, RELIEF, AND ECONOMICS SECURITY (CARES) ACT

05/06/20

CARES Act

School closures associated with the COVID-19 prevent some employees from performing their jobs. Consequently, many school districts are forced to decide whether they will continue compensating employees who cannot work – remotely or on-site – throughout this challenging time. Congress created the CARES Act to provide assistance for those affected by unemployment.

The CARES Act is designed to provide financial support and resources to individuals and businesses affected by the COVID-19 outbreak and was signed into law on March 27, 2020. This economic stimulus package is intended to encourage eligible employers to retain employees. Among the numerous guarantees offered by the CARES Act are the Education Stabilization Fund and the Governor’s Education Relief Fund, which offer further financial support and reassurances for educational related purposes.

Education Stabilization Fund

The CARES Act establishes a $30.74 billion Education Stabilization Fund, allocating $13.5 billion for elementary and secondary education purposes. The funds will be distributed to states based on their share of ESEA Title I-A funds. Subsequently, state education agencies will be required to distribute at least 90% of funds to local education agencies, such as school districts and public charter schools in similar proportion to funds received under Title I-A for the most recent fiscal year. These local education agencies will be granted flexibility to use their funds for a variety of COVID-19 response purposes. Approved purposes include providing resources necessary to address the needs of individual schools; maintaining the operation of and continuity of services; and employing existing staff. Any remaining funds are to be used for COVID-19 related emergency needs.

To receive Education Stabilization Funds, an entity must be deemed eligible. The statute explains that to be considered eligible to receive these funds:

A local educational agency, State, institution of higher education, or other entity that receives funds under the Education Stabilization Fund, shall to the greatest extent practicable, continue to pay its employees and contractors during the period of any disruptions or closures related to Coronavirus.

Therefore, school districts pursuing these funds should continue paying their employees and vendors to the fullest reasonable extent to ensure compliance with the “greatest extent practicable” requirement. Alternatively, districts that are unable to continue paying contracted employees and vendors are advised to document their circumstances and be prepared to explain the discontinued payments if they plan to pursue eligibility in the future.

Federal Pandemic Unemployment Compensation (FPUC)

Under the CARES Act, the South Carolina Department of Employment and Workforce (SCDEW) implemented further support for employees who cannot work - remotely or on-site - due to COVID-19. This assistance comes by way of the Federal Pandemic Unemployment Compensation (FPUC) and will ease the sudden financial burdens of countless employers. Specifically, the FPUC provides for an additional $600 per week in unemployment insurance benefits for eligible claimants. This temporary federal funding has been approved and will be available from the claim week ending April 4, 2020, through the claim week ending July 25, 2020.

Governor’s Education Relief Fund

In addition to the Education Stabilization Fund, the Federal Pandemic Unemployment Compensation, and other forms of relief provided by the CARES Act, each state will also receive a share of the $3 billion Governor’s Education Relief Fund. Governors are permitted to use these funds at their discretion to provide emergency support grants to K-12 schools, colleges and universities, and early education providers.

The CARES Act, and specifically the Education Stabilization Fund, offer guidance, support, and flexibility for school districts by providing financial reassurance for eligible districts. The CARES Act affords school districts with options and motivation to offer relief to school bus drivers, mechanics, support staff, and countless other employees who are not able to work due to COVID-19. White & Story continues to operate and serve our clients, including providing our clients and friends with education about this new law and addressing associated questions or concerns.

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LEGAL ALERT- CORONAVIRUS: IMPLEMENTING THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) TODAY

05/06/20

FFCRA Overview

On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law by President Trump and is effective from April 1, 2020, until December 31, 2020. The FFCRA makes substantial changes to paid sick leave, paid family and medical leave along with tax credits[1] for the paid leave, and an expansion of unemployment insurance for small businesses and employers in 2020. Specifically, the FFCRA relief package includes two provisions, the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave, that provide emergency leave to employees. These provisions only apply to private employers with less than 500 employees and governmental employees (counties, municipalities, state agencies, school districts, etc.).

Emergency Family and Medical Leave Expansion Act (EFMLEA)

Overview

The first section of the FFCRA contains an expansion of the U.S. Family and Medical Leave Act (FMLA). Covered employers are now required to provide their employees with up to 10 weeks of paid FMLA for COVID-19 triggering events. Furthermore, the first two weeks of the normal 12-week FMLA leave are unpaid, but an employee may elect to use his/her paid leave.  After the first two weeks, paid leave is available at two-thirds the employee’s regular rate, which is capped at a set amount.

Employee Eligibility and Pay

Employees who have been employed for at least 30 days that cannot work (including remotely) because they are caring for children, as a result of COVID-19 related school closures are eligible.

Exemptions

As previously mentioned, businesses that have less than 50 employees may be exempt from these provisions. To be exempt, these businesses must show that providing this leave would put them at risk of going out of business. There are other provisions as well.

Emergency Paid Sick Leave (EPSL)

Overview

The second provision of the FFCRA affecting employers provides for Emergency Paid Sick Leave (EPSL). Qualifying employers must offer paid sick leave to eligible employees suffering from COVID-19 related health concerns. It should be noted that EPSL is to be offered in addition to any existing sick leave and/or paid time off that is already offered by an employer.

Employee Eligibility and Pay

The FFCRA Emergency Paid Sick Leave provisions are available to any employee if they are unable to work (including remotely) because they are:

  • Subject to federal, state, or local quarantine or isolation related to COVID-19;
  • Have been advised by their doctor to self-quarantine due to COVID-19;
  • Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • Caring for a family member subject to a quarantine order or self-quarantine;
  • Caring for children if schools are closed or their caregiver is unavailable because of the COVID-19 health emergency; or
  • Experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.

A full-time employee suffering from any of these listed reasons may receive up to 80 hours of paid sick leave. Alternatively, part-time employees may receive pay based on the number of hours that they would work on average during a two-week period. Also, an employee who qualifies for any of the first three listed reasons may receive sick leave at their regular rate with pay capped at $511 per day and $5,110 total. On the other hand, an employee who qualifies based on the second three listed reasons may receive sick leave at two-thirds their regular rate of pay with amounts not exceeding $200 per day and $2,000 total.

Exemptions

As previously mentioned, businesses that have less than 50 employees may be exempt from these provisions. To be exempt, these businesses must show that providing this leave would put them at risk of going out of business. Also, healthcare and emergency response organizations may exclude employees from paid FMLA expansion due to COVID-19.

FFCRA Notice Requirements

The FFCRA requires that each employer post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in the law. The Department of Labor has issued a poster on its website in PDF format as of March 25, 2020 (link in “DOL Links” section). For employees working remotely, emails and/or push notifications are acceptable means of notice.

FFCRA Policy Amendments

To stay consistent with the FFCRA provisions, employers should update existing policies or create an addendum to existing policies or create new policies if the employer did not previously have an FMLA policy (50 employees or less).

 

Helpful Links

White & Story will continue monitoring COVID-19 and related issues and will continue to operate and serve our clients, including assisting our clients with providing education about this new law to their employees; implementing it; and considering areas of liability such as employees out on existing FMLA leave, handling temporary staffing employees, and amending policies.  Below are some helpful resources that may be of assistance with any questions or concerns associated with the recent FFCRA provisions resulting from COVID-19:

 
[1] At this time, the tax credits are not available to governmental employers, such as state agencies and school districts.

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LEGAL ALERT- CORONAVIRUS: GUIDANCE ON EVALUATING EDUCATORS IN THE MIDST OF THE PANDEMIC

05/06/20

On March 17, 2020, State Superintendent Molly Spearman offered a memorandum (memo) to school district personnel administrators and teacher evaluation administrators from Lilla Toal Mandsager, the Director of the Office of Educator Effectiveness and Leadership Development (OEELD). This memo permits flexibility in evaluating educators in the immediate future due to COVID-19 and outlines guidelines for reporting educator evaluations for classroom-based teachers, special areas, and incomplete evaluations.

Educator Evaluation Reporting Guidelines

Typically, the deadline for reporting classroom-based teacher and special areas evaluation data is June 20, and the intermediate dates for observations and final evaluation results are determined in each district’s annual ADEPT plan. For the 2019-20 school year however, OEELD stated that all ADEPT plan due dates will be granted automatic extensions until the reporting deadline. Additionally, the reporting deadline will be reexamined, and OEELD will request an extension of the 2020-21 ADEPT plan due date until July 1.

Circumstances differ for principals. September is the usual deadline for reporting that evaluation data. OEELD indicated that it will continue monitoring the 2019-20 spring semester to gather feedback on whether an extension to the September reporting deadline is needed.

Classroom-Based Teachers

Student Learning Objectives (SLOs)

SLOs are tools that offer actionable reflection and are used in teacher evaluations to measure student growth. SLOs are monitored over specific durations of time when students are with their teachers for instruction and possess certain requirements for special circumstances. In addition to the routine exceptions, for the 2019-20 school year, districts may allow teachers to extend the window for the final SLO assessment to the end of the school year. Furthermore, districts may allow evaluators to use the “Skip SLO” function if school closings prevented the administration of the final SLO assessment and/or the interval of instruction. For teachers undergoing goals-based evaluations, if the SLO has been “skipped,” a final status of “Met” or “Not Met” may still be reported. 

Formative Assessments

To the greatest extent possible, school districts should conduct the required number of formative observations for classroom-based teachers undergoing formative evaluations. Where school closings have inhibited the required number of formative observations, school districts may still report a final status of “Met,” “Not Met,” or “Incomplete” based on the available observation data. Districts are encouraged to modify, hold virtually, or cancel remaining induction professional learning sessions as necessary.

Summative Assessments

Similar to the formative assessments, school districts should also conduct the required number of summative observations for classroom-based teachers undergoing summative evaluation when possible. However, districts may report a final status of “Met” or “Not Met” if all required observations in the preliminary evaluation cycle and at least one required observation from the final evaluation cycle were conducted. Thus, teachers undergoing regular summative evaluation will receive feedback on at least three of the required four total observations, and teachers undergoing highly consequential summative evaluations will receive feedback on at least four of the required six total observations. School districts are encouraged to report an “Incomplete” status for teachers undergoing highly consequential summative evaluations that would otherwise have resulted in a “Not Met.”

Special Areas: School Counselors, School Librarians, and Speech Language Professionals

The OEELD encourages school districts to conduct the required evaluation process, if possible, for special area support staff undergoing formative or summative evaluation. When circumstances prohibit this, districts may report a final overall status of “Met,” “Not Met,” or “Incomplete” based on the available evaluation data.

Incomplete Evaluations, Next Year Contract Levels, and Employment

COVID-19 presents unexpected challenges that demand flexibility and a willingness to adjust from us all. The OEELD’s introduction of an “Incomplete” option for teacher evaluations during this unparalleled time provides both. Essentially, a teacher may receive an “Incomplete” evaluation status and is then eligible to repeat his/her contract level during the next year of employment. This option provides school districts with an alternative to assigning a “Met” or “Not Met” evaluation status when a teacher’s performance has been disturbed due to COVID-19 related matters. Accordingly, any teacher evaluations that determine a teacher has “Not Met” the recognized evaluation standard even with the availability of an “Incomplete” option are strongly encouraged to be supported by data, records, or other evidential support for the decision.

Analyze circumstance holistically and apply the OEELD guidelines as appropriate to each situation before making contract decisions. These evaluation provisions introduced by OEELD offer opportunities for teachers to have a second chance at successfully exhibiting their skills when there is not sufficient data to support a “Not Met” result.

White & Story understands the challenges presented by COVID-19 and continues to monitor the ever shifting legal landscape to assist school districts.

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LEGAL ALERT- CORONAVIRUS: EMPLOYMENT UPDATE

03/22/20

The unprecedented COVID-19 (Coronavirus) outbreak has unsettled the entire nation, demanding immediate adjustments to limit the transmission of the virus. Throughout our country, public schools closed to limit social interactions with others and slow the spread of COVID-19. Consequently, employers now face unique challenges. In school districts, important concerns revolve around the implementation of the Families First Coronavirus Response Act and whether classified employees should be paid during government mandated closures.

Special Provision(s)- H.R.6201- Families First Coronavirus Response Act

On March 18, 2020, the U.S. Senate passed H.R.6201, the Families First Coronavirus Response Act (Act), to assist with the COVID-19 crisis. This Act addresses immediate public health related matters and impacts employers. Specifically, the Act addresses paid family medical leave, paid sick leave, and unemployment insurance. The provisions will go into effect on April 2, 2020, and will expire on December 31, 2020.

Paid Family Medical Leave – The bill provides for 12 weeks of job-protected paid Family and Medical Leave Act (FMLA) leave; the first 10 days may be unpaid. Furthermore, employees may use accrued personal or sick leave during the first 10 days, but employers may not require employees to do so. Following the first 10 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay up to $200 per day or $10,000 in the aggregate. However, these pay requirements apply to only the COVID-19-related triggering events allowing the employee to: self-quarantine, seek preventive care or a diagnosis, or receive treatment for COVID-19, care for a family member or a child whose school or childcare provider is closed due to COVID-19. This leave benefit covers employees who have been working for at least 30 calendar days and applies to any private sector employers under 500 employees.

Paid Sick Leave – Regarding paid sick leave, the Act states that employers with fewer than 500 employees will be required to provide full-time employees 2 weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19. Alternatively, part-time employees are entitled to the number of hours of paid sick time equal to the average number of hours they work over a 2-week period. Employers are required to compensate employees for any paid sick time they take at their regular rates of pay and to post a notice informing employees of their rights to leave. Furthermore, the Act does not preempt existing state or local paid sick leave entitlements.

Unemployment Insurance – The Act provides for $1 billion in emergency unemployment insurance (UI) relief to the states. $500 million will be allocated towards costs associated with increased administration of each state’s UI program and $500 million will be held in reserve to assist states with a 10 percent increase in unemployment. Additionally, to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.  South Carolina is currently expected to see a surge in unemployment claims resulting from COVID-19; employers may apply for benefits for their released employees to ensure they receive compensation.  Employers will not be fiscally penalized for the rise of unemployment claims related to COVID-19.

Current Trends – Pay for Classified Staff

The majority of school districts appear to limit the adverse effects of COVID-19 by continuing to pay their employees. However, while school districts agree on paying employees, the reach of who will be paid greatly varies. An array of considerations must be weighed in making this decision including budget constraints, morale, and legal requirements. Among these considerations, the financial impact prevails. For now, many school districts have funding, which was previously budgeted, to pay all employees. Nonetheless, frustration stems from the subsequent understanding that school districts will see their finances strained if schools, for instance, make-up for lost time during the summer, resulting in the necessity of continued employment for staff members.

School districts around the country have taken different approaches to resolving the financial doubts surrounding staffing concerns. Certain districts will continue to pay all staff, including substitutes and seasonal workers, who will be paid based on the average number of hours they worked daily in the months before the closures. However, other districts’ plans for substitutes and seasonal workers are not as clear. For example, in New York City, teachers, paraprofessionals, and long-term substitutes will continue to teach students remotely and receive pay for throughout the upcoming weeks. However, daily substitutes will not be paid unless they work in-person at regional emergency childcare centers. In Nevada, a superintendent shared plans to pay contracted employees but has not decided about staff who are typically paid only when school is in session. Finally, several school districts have even gone as far as ensuring that all, or most, staff can continue to expect paychecks.

What’s Next?

COVID-19 presents unforeseen circumstances that will challenge our nation to respond timely and appropriately. Consequently, school districts are forced to make significant decisions, including navigating the new legislation and paying their employees. As the situation unfolds, many more decisions will need to be made, and both short-term and long-term effects should be acknowledged. This is the time to communicate with fellow board members, superintendents, and state and federal departments of education to meet the needs of our communities.

We are receiving a number of questions about working remotely and teachers’ responsibilities during that time, so that topic will be the subject of our next Legal Alert.  White & Story will continue to monitor changes in legislation and other issues related to the virus pandemic and operate to serve our clients.  

 

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