GUIDANCE FOR SCHOOL DISTRICTS TO PLAN, PREPARE, AND RESPOND TO THE CORONAVIRUS
Federal and State agencies have recently issued guidance documents related to the potential outbreak of the Coronavirus in Pennsylvania. As of the date of this notification, no cases of the Coronavirus have been reported in Pennsylvania, however officials at the Federal, State, and Local levels continue to monitor the extent of the outbreak. Our office is providing this guidance document to identify some of the existing resources School Districts can utilize to ensure that they are prepared if, and when, the Coronavirus reaches Pennsylvania.
First, all School Districts should review their existing pandemic plan internally among pertinent members of the School District’s Administrative Team and health care professionals. School District staff should pay particular attention to the portions of the plan dealing with a virus outbreak in the setting. In addition, School District officials should reach out to local health officials and emergency service providers to discuss best practices for a rapid response in the event of a positive test within the School District community.
Second, School Districts should prepare contingency plans for alternative instruction should an outbreak of the virus occur and the School District’s physical buildings are forced to close. As officials continue to monitor the outbreak of this virus, School Districts should take common sense approaches to addressing absences by students and staff who may have been exposed to the virus. Special care should be noted for individuals who have recently returned from a trip abroad, or domestically from those areas where confirmed outbreaks have occurred.
The Pennsylvania Departments of Education and Health have promulgated the following resources to assist School Districts, both in mitigating against an outbreak and preparing for the potential that an outbreak of the Coronavirus could occur:
Centers for Disease Control and Prevention Website
Pennsylvania Department of Education – Coronavirus Page
Pennsylvania Department of Health – Coronavirus Information for Education
At this time, disease prevention and monitoring should be the School District’s primary concern. Should any legal issues arise related to your School District’s response to the Coronavirus, our office can assist you in resolving those matters.
GUIDANCE FOR SCHOOL DISTRICTS TO PLAN, PREPARE, AND RESPOND TO THE CORONAVIRUS: FREQUENTLY ASKED QUESTIONS
Last week our office provided a guidance document encouraging School Districts to begin preparations for responding to a potential outbreak of the coronavirus in Pennsylvania. Since that guidance was issued, several individuals in Pennsylvania have tested positive for the virus. As of March 17, 2020, those cases have been confined to the eastern side of the state. However, the disease continues to creep closer to Western Pennsylvania, as the State of Ohio confirmed that three confirmed cases have been diagnosed in and around Cleveland.
We encourage School Districts to continue their efforts to prevent the spread of the disease by following federal and state guidance for disease prevention. However, we also encourage everyone to prepare for the possibility that a significant portion of School District staff may be required to remain out of work for an extended period of time. Regardless of whether an employees’ absence is due to an active outbreak of the virus, results from a quarantine, or stems from the employees’ need to care for family members, School Districts should prepare for the possibility of increased absences from work. To that extent our office has been responding to several common questions attempting to balance the practical implications of exposure to the virus with an employer’s obligations under applicable laws. Our office offers the following guidance on several of the most common questions we have received.
- What questions can a School District ask related to the health of their employees?
Questions have arisen as to how much information a School District can request from its employees who may have come into contact with infected persons or who may present with flu-like symptoms and calling in sick. Guidance from the Equal Employment Opportunity Commission (EEOC) suggests that, under normal circumstances, the Americans with Disabilities Act (ADA) generally prohibits employers from making disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity.
An exception to this general rule exists where an employee will pose a direct threat due to a medical condition. It is highly likely that the potential for coronavirus exposure would constitute a direct threat under this test. Accordingly, an employer may inquire of its employees who are calling in sick whether or not they are experiencing flu-like symptoms. School Districts must maintain this information in strict confidentiality in order to maintain compliance with the ADA and HIPAA. This information can inform the School District as to its next steps moving forward.
- Can a School District direct its employees to leave work if they are sick?
Another common question is whether or not an employer may direct an employee who presents at work with flu-like symptoms to leave the workplace. In short, EEOC guidance permits employers to direct employees to leave work. Other employment related issues, such as charging accrued sick time against an employee who is directed by the School District to leave is beyond the scope of EEOC guidance and these questions should be directed to Maiello, Brungo & Maiello for further guidance.
- What must an employee do to return to work?
School Districts have also inquired as to whether or not a physician’s certificate is required before an employee who had been sent home can return to work. The ADA does permit an employer to require a physician’s note certifying an employee’s fitness for duty. However, from a practical standpoint, governmental health entities have suggested that employers temporarily relax or suspend such policies due to the possibility that health care professionals may have higher priorities should the virus continue to grow exponentially. At that point, Maiello, Brungo & Maiello could further advise your School District and work with applicable labor associations to achieve an appropriate resolution.
Our office continues to monitor the outbreak of the coronavirus as well as any guidance issued by state and federal agencies. We encourage you to contact our office with any questions as to your legal obligations during this event.
GUIDANCE FOR SCHOOL DISTRICTS TO PLAN, PREPARE, AND RESPOND TO THE CORONAVIRUS: MEETING PROCEDURE
Following the recent guidance from state and federal health authorities recommending restrictions on large, public gatherings, many public entities have questioned their legal obligations in holding public meetings during the ongoing coronavirus crisis. Given the fact the confirmed cases of the virus are expected to increase exponentially in the coming weeks, this issue may affect governmental entities for the next few months. The following are some recommended steps that a public entity could take to reduce the risk of spreading the virus.
- Rescheduling/Canceling Meetings.
Regarding School Districts, Section 421 of the Pennsylvania Public School Code requires that a school board hold a “regular meeting” at least once every two (2) months. Thus, is a School District has already held a regular meeting in March, it could cancel future meetings until the month of May. If it has not yet held a meeting in March, it could cancel that meeting and re-convene at the April meeting. Our office can advise on the procedure for canceling and rescheduling meetings. Generally, municipal codes require municipal governments to meet on a monthly basis. If a municipality has already held its March regular meeting, it could conceivably reschedule the April meeting until a later date in the month. Those entities who have not yet held meetings in March and, by law, must meet by the end of the month should follow the guidance below.
- Remote/Electronic Participation in Meetings
Remote participation in meetings is authorized by the Pennsylvania Supreme Court ruling in the case of Babac v. Pennsylvania Milk Marketing Board, and has been codified in the School Code and certain municipal codes. Many governmental entities have further established policies for remote participation. The vast majority of these policies limit the amount of Board or Council members who can participate remotely. The Pennsylvania Borough Code actually mandates that a quorum of Council be physically present in order to hold a meeting, thus limiting the amount of council members who can attend remotely. Absent such statutory language in the relevant school and municipal codes, a municipal legislative body is not legally required to have a physical quorum present to conduct business, all or some of the members may participate via remote means.
Additionally, in order to comply with the provisions of the Pennsylvania Sunshine Act, a public body must provide a reasonable opportunity for the members of the public to comment on any business before the public entity. This precludes a public entity from, for example, holding a private conference call to conduct business, regardless of the existence of a state of emergency. A public entity can hold a meeting remotely if all of the formalities of the Sunshine Law, such as appropriate notice and providing a forum for public comment, are followed. It is strongly recommended that you contact our office in order to discuss this course of action.
If your School District or Municipality requires guidance on procedures for canceling or holding an upcoming meeting during the ongoing coronavirus epidemic, you are encouraged to contact our office so we can discuss your options under the law. Different entities may have different responsibilities and requirements and it is best to discuss these issues on a case by case basis so your public entity is appropriately protected.