Q&A: Legal Issues When Schools Reopen
How can schools avoid legal exposure during the COVID-19 pandemic? In August, Education Law litigator and lecturer John B. Comegno II, Esq. presented a webinar on schools’ legal considerations as they set about reopening. Here, John responds to audience questions about that topic.
Note: Frontline Education does not provide legal advice. Always be sure to consult your district’s legal counsel on the issues discussed here. The transcript below has been edited for readability.
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Students with Disabilities
Q: If you started an initial assessment signed two days before school closures, what does the timeline look like when schools start again virtually this year? How much time do you have to finish that assessment?
A: The closures raised all sorts of timeline questions. The inability to be face-to-face and actually get assessments and evaluations done on time because of public health orders closing schools is a reality across the country. USDOE has not waived timelines, and timelines didn’t stop at the closure. Schools have to do what they’re able to do, not necessarily what they would be expected to do in normal times when brick and mortar schools were open. Prioritize, get the evaluations done, particularly for students that are falling behind.
Q: If we test in person for special education, can we be sued if a child gets sick from COVID-19 when all safety precautions are followed?
A: We can be sued for anything, at any time, on any facts. The question is not so much can we be sued, but are we going to have exposure? Are we going to be liable? The concept is about standard of care, which means that we have to exercise a reasonable standard of care for known risk.
If schools have implemented established safety plans, including social distancing and wearing masks, if they’ve done all the things they know they have to do to keep one another safe, if schools are doing as they promised, they’re as safe as they’re going to be with any other kind of contagion.
“Devote your energy to implementing plans and holding folks accountable to the safeguards that we’ve told our communities we’re going to have in place.”
Q: How should districts address special education students who do not or cannot keep masks on? Should the IEP team be responsible for determining if a student should be exempt from wearing a mask due to their disability?
A: Is the inability to wear a mask due to a disability? Is there an inability to wear a mask? Is this elective or not? We expect our students to wear shirts, despite sensory issues. We expect them to wear pants, despite behavioral considerations. We expect them to follow a certain code of conduct, despite whatever behavioral difficulty or diagnosis there might be. So, if we feel that resistance to wearing PPE is related to the disability, then engage behaviorists to assist in developing a plan. Let’s do all those things that we would otherwise do to enable learning. If it’s elective, then it’s a failure to follow the code of conduct. There are behavioral consequences, and we deal with it that way.
Q: Our state has given districts the option to bring students back in small groups for limited in-person instruction and then specified that this could be for special education, interventions, or mental health. If our district is not bringing students back yet, are we open to special education due process claims and Comp Ed (Compensatory Education)?
A: We need to do everything that we can for disabled students. If there is a way that we can provide more for those students with severe difficulties by bringing them back five days a week, we should. To the extent that we can accommodate, teach, and deliver related service, we ought to. The Comp Ed claims happen when we can deliver, but we choose not to.
“We need to do everything that we can for disabled students.”
Q: If a district-wide survey was conducted and parents indicated that they wanted remote instruction, can that count as consent for a student with an IEP?
A: The IEP acts as consent to implement the IEP. It does not act as consent to deliver it in 15 different homes in your community, with 30 parents and guardians listening in. Our teachers and related service providers need to be aware of that. The IEP equals consent to implement it, but let’s be mindful of owning the virtual space and make sure that people aren’t listening in or viewing who shouldn’t be.
Q: If a district is using an app to track people with COVID-19 symptoms, is there a requirement to include consent per FERPA?
A: FERPA protects education records, which is defined as “personally identifiable information.” You don’t need consent unless you’re going to take that information and share it with someone who doesn’t typically have access to it. If we’re using an app and the parents agree to use the app, they’re likely giving their consent. That information is shared with administrators and school nurses to monitor health and safety.
“Best advice is to treat all student information as confidential and make sure that only folks with the need to know have access to it. That’s how we stay safe.”
Q: What documentation is required for a medical condition when parents ask for a mask exemption? What about face shields versus mask?
A: I have not seen a single doctor’s note in any of our schools in any state that has identified a diagnosis or a condition that prevents one from using a mask. People will voice that they have breathing issues or limits in a mask. They’re uncomfortable. There has to be a diagnosis, a prognosis, and a treatment plan in writing. The school should share that either with the school physician or school nurse to confirm it’s a legitimate diagnosis and that they agree with it.
Q: Are medical personnel in schools only bound by FERPA, or are they bound by HIPAA as well?
A: Unless those medical personnel treat and charge a fee for medical service, they’re not bound by HIPAA. They’re bound by FERPA. Nurses know their forms and requirements, and they know their responsibilities. They’re not creating health records. They’re creating educational records about health, so they’re bound by FERPA to make sure those records are kept confidential.
Q: Does FERPA apply to using cameras in the classroom as it relates to discipline?
A: Teachers need to be aware of being on camera to the home viewers, as well as students. They should make available video that only shows the teacher and no other students. Make sure that teachers are mindful of the hot mic phenomenon, so if they’re going to discipline students, they turn the mic off while they’re doing it, and then turn it back on when they get back to instruction. We do not want to share a correction, disciplinary management, or classroom management with other parents.
Accommodations for Staff
Q: If schools are offering free employee daycare, can we deny them FFCRA leave because of closed daycare?
A: The FFCRA (Families First Coronavirus Relief Act) is about providing support for employees whose childcare or schools for their kids are closed. The US Department of Labor has not spoken to offering childcare for employees in schools. It’s a creative idea. There may be a claim, but districts should consult with the school’s attorney in dealing with any denial to use that support and how to manage a leave request.
Q: Can the district legally give only ten days of COVID leave, even if the employee continuously becomes exposed by other staff or students and has to self-quarantine?
A: Probably not. The question goes to the EPSLA (Emergency Paid Sick Leave Act), which extends FMLA (Family and Medical Leave Act) unpaid leave. If an employee gets sick at work on account of exposure at work and the school can contact-trace that, it’s got to be deliberate and thoughtful in the leave provided.
Q: People talk about asthma being something that prevents them from being able to wear a mask. If an employee requests an accommodation, can we offer that they can take the mask off in isolation as often as possible, as a reasonable accommodation, in lieu of allowing a face shield only?
A: Schools have to engage in what’s called the “interactive process.” Schools need to secure that medical data we just talked about, then talk about what is a reasonable accommodation to keep that person safe and keep others in proximity safe. Could taking the mask off in certain periods when they’re alone or when they’re outside be reasonable? Sure, it could be. Statistically though, we see a lot of data showing that the oxygen levels in the bloodstream of a mask wearer are no different than one not wearing a mask. The conversation about how you provide accommodations needs to take that into consideration, as well as the big picture of health and safety. You need to keep everyone in the environment safe.
Q: We received a doctor’s note indicating that the employee should not wear a mask and should wear a face shield instead. Do we have to comply with it?
A: A doctor’s note is a piece of paper. It is that professional’s opinion, and we want to consider it. But you’re never bound to a piece of paper. You may reach agreement that it is a reasonable accommodation. What is binding is engaging in the interactive process, making sure you don’t ignore it, and making sure you come to a compliant conclusion through an open, objective, interactive process and conversation.
There is no “COVID pass.” Just because a mask may make employees uncomfortable and they don’t like it, that doesn’t mean they get a pass for not wearing it.
Q: When faculty apply for 504 accommodations, do they have to sign a HIPAA form so the school physician can speak to their physician, even if their physician submitted a letter to support the medical need for accommodations?
A: HIPAA (Health Insurance and Accountability Act, a federal law protecting sensitive patient health information from being disclosed without the patient’s consent or knowledge) doesn’t apply to educators. FERPA does. HIPAA applies to the medical office that we might be calling to inquire about the employee. It’s up to the employee to sign a HIPAA release with their doctor, not you. If you’re calling to validate the note or ask further questions about the diagnosis or the treatment plan, you don’t need anything signed.
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Q: Does a person qualify for the FFCRA if they miss work because they exhibit symptoms, but their COVID test comes back negative?
A: Even though they test negative, if someone else in the home is positive, or if they’ve been exposed, there might be public health direction that they should stay out longer. And if that’s the case, then they still remain eligible.
Q: Are there rights and provisions for employees with high-risk medical conditions or who are caring for high-risk family members in their home?
A: Yes, those folks are eligible under FFCRA. You want medical documentation to confirm, but there are leave protections for those folks.
Q: What if the employee has childcare available but cannot work because they can’t afford the childcare?
A: I don’t think there is literal application of the FFCRA or the EPSLA, the federal laws, on those facts. The US Congress certainly showed empathy and care, up to a point, but they talked about closure. They didn’t say it was too expensive, they said it was unavailable. Could the employee make an argument that childcare is actually unavailable because they can’t afford it? Sure. The employee could also have a conversation with the employer about what type of accommodation might be possible. Maybe there’s a way to enable this employee to be home when they need to provide the childcare or telework during that time. Interactive process, documentation, and communication are most important things in this area.
Follow the Plan
Q: If we are following a standard of care, why can’t we require temperatures, masks, social distancing, and handwashing at school and at home? Doesn’t this demonstrate that we are making the safety of all students and staff a priority?
A: You can explain what the science is and what public health recommendations are to parents. What they choose to do in their homes is up to them. You can and should hold them accountable for temperature taking and observation of symptoms. If there are any, then those students shouldn’t be coming to school.
Q: If an employee gets sick at school due to something work-related, just as if they fall and break an ankle, are they covered by workers’ compensation?
A: A contagious disease is typically not a workers’ compensation claim because when it comes down to it, we don’t know when somebody is exposed. For there to be workers’ compensation, the employee would have to show that the workplace was not safe, that we’re not implementing our plan, or we’re not holding folks accountable.
- FFCRA: Families First Coronavirus Relief Act; requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
- EFMLEA: Emergency Family and Medical Leave Expansion Act; amends the Family and Medical Leave Act (FMLA) to provide emergency paid and unpaid leave for employee absences related to COVID-19. Employees are eligible for this emergency leave if they have been employed for at least 30 days and request leave because they are unable to work (including telework) because they need to care for their minor child due to (1) closure of their child’s school or child care center, or (2) their child care provider’s unavailability, in either case, due to an emergency declaration by federal, state, or local authorities related to COVID-19.
- EPSLA: Emergency Paid Sick Leave Act; provides that full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled to paid sick leave equal to the amount of their average work hours over a two-week period. The EPSLA identifies six different situations in which an employee may use the paid leave.1
- HIPAA: Health Insurance Portability and Accountability Act; federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.
- The Privacy Rule standards address the use and disclosure of individuals’ health information. The Privacy Rule also contains standards for individuals’ rights to understand and control how their health information is used. A major goal of the Privacy Rule is to ensure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high-quality health care and to protect the public’s health and well-being.2
- FERPA: Family Educational Rights and Privacy Act; protects the privacy of student education records.3
1 Families First Coronavirus Response Act: Employer Paid Leave Requirements. (n.d.). https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
2 Indian Health Service (IHS). (n.d.). https://www.ihs.gov/hipaa/
3 Family Educational Rights and Privacy Act (FERPA). (2018, March 01). https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html