The outbreak of the novel coronavirus (COVID-19) has presented unprecedented challenges for public and private educational institutions across the country. As schools evaluate how to move forward, Husch Blackwell and our entire Education team is continually monitoring and responding to federal and state guidance on this issue. We have various resources ready to assist you immediately. We discuss those resources below and assure you that we will keep them updated as new guidance is issued as the situation evolves.
In response to the extraordinary public health threat posed by COVID-19, President Donald J. Trump declared a national emergency on March 13, 2020.
On March 18, 2020, President Trump signed the bipartisan Families First Coronavirus Response Act (“the Act”). The Act responds to the coronavirus pandemic by requiring employers to provide paid sick leave to employees, providing free coronavirus testing, expanding food assistance and unemployment benefits, and providing grants to states for processing and paying claims. Under the Act, public employers and small and midsize companies are required to provide two weeks (80 hours) paid sick leave to employees impacted by the coronavirus; however, small businesses with less than 50 employees and healthcare providers are exempt under the Act. In addition, companies with 500 or more employees are not covered under the Act. For an employee to qualify for paid sick leave, they must be subject to a quarantine or isolation order, been advised by a healthcare provider to self-quarantine, or be experiencing coronavirus symptoms and seeking a medical diagnosis. Employees may also qualify for partially paid sick leave if they take sick leave to care for another individual or child.
U.S. Department of Education Guidance
The U.S. Department of Education continues to update www.ed.gov/coronavirus with information for students, parents, educators and local leaders about how to prevent the spread of COVID-19. To date, the Department has issued the following guidance documents regarding school operations in this midst of this crisis:
- Online Instruction: On March 5, 2020, the U.S. Department of Education provided guidance for schools impacted by the coronavirus. The guidance provides flexibility to ensure students can complete the semester under both short and long-term closure scenarios. The Department encourages online education for teaching students through COVID-19 interruptions by providing broad approval to institutions to use online technologies to accommodate students on a temporary basis. This requires an institution to communicate to students through one of several types of technology—including email—described under 34 CFR § 600.2, and instructors must initiate substantive communication with students on a regular basis. Schools are also permitted to request a temporary reduction in the length of its academic year.
- Conference Call With State Leaders: On March 12, 2020, the U.S. Department of Education participated on a conference call with Chief State School Officials to answer questions on the Administration’s response to COVID-19. During the discussion, representatives from the U.S. Department of Education and other federal offices answered questions about the process for approval of statewide testing waivers, meal delivery for students during school closures, lengths of school closures due to the outbreak, requirements for local education agencies to provide services to students with disabilities, and disability law requirements during the outbreak.
- Student Privacy: Also on March 12, 2020, the U.S. Department of Education released new resources for educators that will protect student privacy. The guidance explains that under FERPA’s health or safety emergency exception, an educational agency or institution may make a determination on a case-by-case basis, whether to disclose personally identifiable information from education records without consent to appropriate parties to respond to an imminent threat or emergency. This includes sending such information to public health departments. The guidance clarifies that if a school determines that one of its students is out sick due to COVID-19, it may disclose the student’s illness to other students and their parents in non-personally identifiable form. Schools are not permitted to disclose particular names of sick individuals to the media, and the Department recommends reporting “the fact that an individual in the school has been determined to have COVID-19, rather than specifically identifying the student who is infected.” The guidance includes a Sample FERPA Consent Form for schools to use.
- Protecting Civil Rights: On March 16, 2019, the Department issued guidance for schools to ensure that student civil rights continued to be protected during the COVID-19 outbreak. The Department noted that schools have “significant latitude and authority to take necessary actions to protect the health, safety, and welfare of students and school staff.” In exercising this discretion, however, school leaders must “be mindful of the requirements of Section 504, Title II, and Title VI, to ensure that all students are able to study and learn in an environment that is safe and free from discrimination.” Specifically, the guidance highlighted preventing bullying or harassment, including in the online environment; denial of access on the basis of race, color, or national origin; and ensuring access for students with disabilities. The guidance also includes additional resources for communicating about the coronavirus.
- Educational Access for Students with Disabilities: The Department also has issued two additional guidance documents specifically addressing meeting the needs of students with disabilities during this crisis. First, the Department published a “Q&A” on the topic, which outlines states’ responsibilities to infants, toddlers, and children with disabilities and their families, and to the staff serving these children. The Q&A focuses on implementing and complying with the IDEA and Section 504. In addition, on March 21, the Department provided supplemental guidance in the form of a fact sheet regarding addressing the risk of COVID-19 in schools while serving children with disabilities. The Department made clear that federal law should not be used to prevent schools from offering distance learning opportunities to all students, including students with disabilities: “This is a time for creativity and an opportunity to pursue as much flexibility as possible so that learning continues.” The fact sheet includes guidance on timelines for IDEA compliance in an “unprecedented national emergency,” and emphasizes that “federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities.” The Department also published a short webinar on online education and website accessibility.
- Federal Assessment and Accountability Waiver: On March 20, 2019, U.S. Secretary of Education Betsy DeVos announced that students impacted by school closures due to the coronavirus pandemic can request a one-year waiver of federal assessment and accountability requirements for the 2019–2020 school year. Upon a proper request, the U.S. Department of Education will grant a waiver to any state that is unable to assess its students due to the ongoing national emergency, providing relief from federally mandated testing requirements for this school year. The U.S. Department of Education’s guidance includes a streamlined template and checklist for compliance.
In addition, the U.S. Department of Education also recommends reviewing the resources and guidance issued by the Centers for Disease Control and Prevention (CDC) about COVID-19, available at www.cdc.gov/coronavirus/2019-ncov/index.html. The CDC’s resources include Interim Guidance for Administrators of US K-12 Schools and Childcare Programs.
We will continue to monitor and evaluate developing legal and practical considerations for educational institutions. Husch Blackwell’s own guidance relating to a host of issues, including labor and employment, data security and privacy, and healthcare considerations are available in the firm’s Coronavirus Toolkit, which is updated on an ongoing basis.
Questions regarding this guidance or your institution’s response to the COVID-19 outbreak also can be directed to COVID19response@huschblackwell.com, directly to us, or to your Husch Blackwell education law contact.