COVID-19: Planning for the Fall - Things to Consider
As we approach the end of what will surely go down as the most stressful and challenging school year in generations, we wish we could simply tell everyone to have a good summer. However, it is already necessary to look ahead to how reopening schools will look in August and September.
The range of possible scenarios is far too broad for one set of strategies to be effective for all clients. Some schools may find themselves opening next year more or less as normal. Even for these schools, however, two issues loom and require some advance planning.
First, as those who utilize the firm for special education services have already been advised, each district will have to conduct an analysis of all its special education students with Individualized Education Plans. For each of those students, the district will have to make a determination as to whether each student is entitled to compensatory services. If so, then the district will have to figure out how to deliver those compensatory services. It is unrealistic to expect that all those services can be delivered during the school day. In other words, districts will find themselves attempting to provide services either after school or through summer programming beyond the usual Extended School Year services. That will require staffing, not to mention that those additional hours are likely not part of the 2020-2021 budget school boards are currently approving.
Second, even if your district opens as normal, if you have not already done so, you should develop an unambiguous plan regarding how your district will respond if a student or employee tests positive for COVID-19. This plan should be developed in coordination, wherever possible, with your county health department. Will the entire building be closed, or just a portion? How long will the closure last? What kind of “contact tracing” will the district conduct? Will there be an automatic and mandatory cleaning process, what will it involve, and who will do it? If the intent is to use an outside cleaning service, do you risk a claim that the district is outsourcing bargaining unit work?
For districts that are in areas still confronting active cases, the issues will get even more complicated. Any attempt to create a hybrid educational model combining brick and mortar instruction with mandatory cyber instruction is very likely to be a violation of the teachers’ collective bargaining agreement. Act 13 of 2020 will be of no help in this situation, as its terms (aside from certain language regarding evaluations and furloughs) only applies to the 2019-2020 school year. If the legislature does not take more specific action regarding the 2020-2021 school year, then you will have to come to agreement with your unions around any significant structural changes.
One other issue which we anticipate will arise for all our clients, but especially those in areas where COVID-19 remains active, is that some employees may not wish to return to the brick and mortar setting. For employees who are not at particular risk of complications and are not themselves subject to quarantine, such a concern would not normally be justification for sick time, and certainly not paid leave. Through the end of the calendar year, when the leave provisions of the Families First Coronavirus Relief Act expire, an employee with an actual order to quarantine or who is caring for someone who is sick with COVID-19 will still be eligible for two weeks emergency paid leave. The closer question will be for an employee who has an underlying health condition whose vulnerability is documented by a physician. That could, in theory, rise to the level of a protected disability under the ADA which would require reasonable accommodations. As we have previously advised our clients, some leave time has been recognized as a reasonable accommodation by courts under certain circumstances.
These issues will undoubtedly continue to evolve. Our firm has participated in a statewide task force to attempt to come up with a toolkit around reopening, which we hope will be available in the coming week or so. By necessity, however, such guidance will speak only in general terms. As always, we remain available to assist our clients with specific issues as they arise. For those who have enjoyed the benefit of the special education, technology and employment alerts posted on the public portion of our website, now that Pennsylvania counties are moving out of the “red” phase of restrictions, we will return to sharing coronavirus-related advice solely on our resource room, in email blasts to subscribers of Pool Counsel, and in day-to-day guidance of our clients. Should you wish to learn more about the services of the firm, please contact David Conn (labor/employment), Andy Faust (special education) or Mark Cheramie Walz (technology) at 215-345-9111. Please continue to stay safe and well.