LEGAL ALERT: REVISED FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) REGULATIONS MAY PROMPT POLICY UPDATES AND CENTERS FOR DISEASE CONTROL (CDC) UPDATES CONTACT TRACING GUIDANCE

11/04/20

FFCRA Updates

Following the U.S. Department of Labor’s (DOL) recent revisions to FFCRA regulations, many employers may need to adjust their documentation and intermittent leave policies. There are three specific areas in which employers may need to address: (1) documentation; (2) intermittent leave; and (3) the health-care-provider exemption.

Documentation

In regard to documentation, the actual requirements for FFCRA leave haven’t changed; however, the timing of when the documentation must be provided has been revised. Under the revised rule, the employee must provide documentation “as soon as practicable.”

Intermittent Leave

For intermittent leave, the DOL’s revised regulations provide reasoning for its requirement that employees have their employer’s approval to take intermittent leave. Additionally, it is suggested that employers assess requests for intermittent FFCRA leave on a case-by-case basis and make certain revisions to FFCRA consent forms.

Health-Care-Provider Exemption

Lastly, the DOL issued revised rules about the health-care-provider exemption by clarifying who is considered to be a health care worker. Now, health care workers include those classified as health care providers under the FMLA and individuals employed to provide diagnostic services, preventive services, treatment services, or other services integrated with and necessary to patient care.

CDC Close Contact

The CDC updated its definition of “close contact” for those who come into proximity of someone testing positive for COVID-19.  Under previous guidance, the CDC defined a close contact as someone who spent at least 15 consecutive minutes within six feet of an infected person.  Now, the CDC defines a close contact as someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated.

By default, schools involve the interaction of high numbers of students and staff; some districts already use the newer definition, in addition to large employers.  When determining whether an individual has been exposed to an infected person for 15 minutes or more, all employers need to look at brief interactions 

between individuals that may occur several times a day, instead of one or two prolonged exposures. Infected employees should identify others who worked within six feet of them, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms. The CDC advises most employers send home any

employees who have had a risk of exposure under this analysis. Those employees should maintain social distancing and self-monitor for 14 days from the exposure.

As a result of the new definition of close contact, employers should review their COVID-19-related plans with this new definition in mind and, at a minimum, update their contact-tracing questionnaires.

In an effort of continued support, White & Story will continue monitoring any FFCRA and COVID-19 related legal discussion and is available to assist our clients in developing updated policies and procedures.

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TELEWORKING

10/22/20

Many school districts across South Carolina are presently using a virtual platform for some or all of student instruction.  While some school districts require that teachers instruct students virtually from the teacher’s regular classroom, other districts are allowing teachers to instruct from their home.  The home environment may result in an increase in challenging workers’ compensation claims, requiring the determination of whether an employee’s claimed injury is legitimate or fraudulent. The home environment also can be challenging as far as the maintenance of privacy and confidentiality, resulting in potential claims under the Family Educational Rights and Privacy Act (FERPA).     

Workers’ Compensation and Telework Agreements

             An employee’s credibility or lack thereof is important in all workers’ compensation claims. The South Carolina statutes governing workers’ compensation claims require the injured employee to demonstrate that his/her injury arose out of and in the course of employment to be compensable. Because teleworker injuries are often unwitnessed, the employee’s prior work history, integrity, and diligence in following telework policies/procedures and timeliness as to reporting any claims will be important. To protect themselves, school districts should consider implementing comprehensive telework policies and procedures to prevent or defeat fraudulent workers’ compensation claims.

            Within these policies and procedures, districts should generally address how the employee’s home workspace will be designed.  For example, employees should be advised to designate a working space within their home that is free from potential hazards.  Districts also should inform teleworking employees that they are required to document the times when they take a break to eat or perform household chores, so it is clear that if an injury occurs during that break time, e.g. a kitchen burn, that injury will not be compensable.  Employees also should be placed on notice that school/district officials may visit an employee’s home during regular work hours to determine if the working environment presents hazards.

Confidentiality and Teleworking

            Within their home environment, most teachers likely do not have the level of security, such as locked files, computers, and desks, that are present in a regular classroom.  Because the confidentiality of student education information is still required by FERPA regardless of whether the instruction is occurring from the home environment, districts must advise teachers that they are expected to store student education information, such as attendance, grades, and discipline, in a folder or folders on the computer where they cannot be accessed by anyone other than the teacher.  Teachers also should ensure that, during instruction, family members and/or visitors to their home are kept away from the area of the house where instruction is occurring.

Finally, many teachers were given the option at the beginning of the school year to teach remotely or face-to-face.  For those teachers who selected the virtual option, there is no guarantee that they will be able to teach remotely for the entire school year.  As your district makes a decision on transitioning from virtual to face-to-face instruction, we recommend you remind teachers that their contract does not designate a specified place of instruction and they may be required to return to their classroom at any time.

If you have questions or would like for us to assist you with developing teleworking policies or procedures, please feel free to contact our office.

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ISSUE OF THE MONTH: CELEBRATING OUR GRADUATES IN THE MIDST OF THE CORONAVIRUS

06/29/20

The effects of COVID-19 (Coronavirus) have been undeniable and will leave a lasting impression on us all. Specifically, this school year presents extraordinary challenges to school districts, which directly impacts employees, students, and families. Although many of these challenges are addressed, others are more complicated. For many, the 2020 graduation ceremonies are a pivotal part of student life that may be changed by COVID-19, but the virus also provides an opportunity for districts to reimagine celebrations in a number of ways.  We consider several alternatives to the traditional graduation ceremony that school districts may choose to implement for their 2020 graduates and hope that everyone shares in the joy that this momentous occasion brings. 

In-Person Social-Distancing Ceremony

A social distancing graduation allows for an in-person ceremony that utilizes social distancing procedures to protect the health of all attendees. In selecting this option, a school district may conduct its graduation ceremony at the local school stadium or at a local venue and proactively implement measures to preserve the maximum amount of personal space for the duration of the event. This option preserves the familiarity of the traditional graduation ceremony and may be attractive for smaller school districts that are able to effectively ensure social distancing between attendees.  Districts using this option should consider limiting event tickets, effectively communicating social distancing guidelines (seating placement, hand sanitizing, mask usage, etc.), and implementing day-of plans to ensure that the guidelines are upheld.

Drive-By Ceremony

A drive-by graduation ceremony is an option that limits social interactions while still allowing graduating students to “walk” on stage and receive their diplomas. Students are assigned a specific time to arrive at the school when they are instructed to enter the school, walk the stage as if participating in a traditional ceremony, and issued their diplomas. To limit social interactions, school districts may allow students a limited number of guests that may accompany them to the ceremony and offer a complete recording of the ceremony at a later date that may be shared with loved ones.

Drive-Up Ceremony

A drive-up ceremony offers graduating students an opportunity to be recognized in person without physically exiting their vehicles and “walking” to receive their diplomas. Here, students are assigned a specific time to arrive at the school, when they are congratulated for their accomplishments by staff members without exiting their vehicles. Schools utilizing this option may use yard signs or similar props to commemorate the accomplishments of the graduates.

Online Ceremony

An online graduation ceremony recognizes graduates remotely. Graduates may send photos, videos, and short speeches that are compiled into an online presentation by staff. Further recognitions such as scholarship recipients and outstanding achievements may be acknowledged virtually within the presentation. The presentation may be shared with students and their guardians, so they can celebrate their accomplishments. Additionally, school districts may elect to follow this type of ceremony with an auto procession when the family can drive up to the school, and staff may cheer the graduates as they are awarded diplomas.

Combination Ceremony

A combination graduation ceremony is a blend of a restricted graduation ceremony (one of the former options) that is offered to students now while later committing to providing an in-person ceremony at a time when social-distancing restrictions are relaxed.

Reschedule Ceremony

Lastly, school districts may elect to reschedule their 2020 graduation ceremonies until a later date, such as August or September 2020, to have a traditional in-person graduation. School districts considering this option should remain conscious of the uncertain future of COVID-19 as they plan graduation ceremonies and share the need for flexibility from all involved moving forward.

There is no perfect solution to the impact that COVID-19 has on 2020 graduation ceremonies. However, school districts may offer an efficient alternative to relieve the frustrations of many graduating students and their families during this time. As the school year comes to an end, school districts that are unsure of how they will address these concerns should consider creating a task force to discuss their graduation ceremony options and decide on the most effective route given their specific conditions. It is strongly urged that all graduation ceremony decisions are made considering the impact that each option will have on graduating students, their families, and their communities.  Also consider virtual options, recordings, and other electronic ways to share your district’s love for your students that may be combined with flyers, posters, and other creative ways to highlight the class of 2020.

White & Story wishes all 2020 graduates success, and our thoughts and prayers are with their families during this time as we navigate the uncertainty of COVID-19 together.

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LEGAL ALERT: TITLE VII PROTECTIONS FOR EMPLOYEES EXPANDED BY U.S. SUPREME COURT

06/29/20

On June 15, 2020, the United States Supreme Court (SCOTUS) ruled that the 1964 Civil Rights Act (Title VII) protects members of the LGBTQ (lesbian, gay, bisexual, transgender and queer or questioning) community against workplace discrimination based on sex in the Bostock v. Clayton County case. Accordingly, school district officials, employees, and representatives should familiarize themselves with the updated protections to ensure compliance.

Title VII and the Civil Rights Act

Title VII of the 1964 Civil Rights Act is a federal law that provides protection(s) from employment discrimination. Specifically, this law prohibits discrimination in the recruiting, hiring, and other employment actions on the basis of race, color, national origin, sex, and religion. Furthermore, the protections within Title VII apply to employers in both private and public sectors that have 15 or more employees – including school districts. Employment policies and practices may be discriminatory under Title VII if they are based on disparate treatment or disparate impact, which means that if an employment practice or policy causes workplace discrimination against a protected class within Title VII, then the policy may still be deemed to be a Title VII violation.

Bostock v. Clayton County

Bostock v. Clayton County deals with three related employment cases involving employers that allegedly fired long-time employees for being homosexual or transgender. SCOTUS combined all three cases into one decision and delivered a massive 33-page opinion discussing the existing protections that LGBTQ people have against employment discrimination and, specifically, how Title VII’s ban on sex discrimination in the workplace protects against discrimination on the basis of sexual orientation and gender identity.

In each of the cases, the parties disagreed on whether sexual orientation and gender identity are covered under the ban against sex discrimination. Historically, there has been debate as to the applicability of Title VII protections in employment discrimination cases on the basis of sexual orientation and gender identity. The decision of Bostock v. Clayton County provides clarity by objectively stating that Title VII does indeed protect employees from workplace sex discrimination. Specifically, SCOTUS held that, “An employer who fires an individual merely for being gay or transgender violates Title VII.”

What this means for School Districts

The SCOTUS opinion will have a long-term impact on employers who are subject to Title VII. Bostock v. Clayton provides clarity for any confusion as to the applicability of Title VII protections in employment discrimination cases on the basis of sexual orientation and gender identity. Accordingly, it is extremely important for school district officials to ensure that their current policies and employment procedures adhere to these protections. Any current policies and procedures that do not effectively incorporate appropriate protections against sex discrimination in the workplace should be updated and modified to comply with Title VII and this ruling.

If you have any questions about this legal alert or the Title VII implications from this SCOTUS decision, please feel free to contact White & Story.

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