Mar 11th, 2020Responding to the Coronavirus: The School Attorney’s Perspective
Coronavirus (COVID-19) is a matter of great concern to the public at large and obviously to those involved with public education. The health of students, staff, others in the school community, and the broader community is a priority. The good news is that you are probably well equipped to manage this situation and you do not have to face it alone.
There is new information on a daily, even hourly, basis. Those with expertise and authority in public health have developed detailed directives and guidance. Therefore, we will not attempt to paraphrase it. We encourage you to click on the links at the end of this article and read the original sources.
We offer the following additional information and suggestions from our perspective as school attorneys.
Ongoing Developments at the State Level
New York State agencies and officials have been working on different aspects of the Coronavirus outbreak that are likely to affect public education. For example:
- We understand that it is likely that school districts that are unable to have 180 days of instruction due to school closings will be protected from a loss in state aid. The details are being worked out.
- Governor Cuomo has said that he will propose legislation requiring employers to provide paid sick leave to employees. The legislation would specifically protect those who are required to stay home from work because they are being isolated or quarantined as a result of the novel coronavirus. It is not certain at this point which employees this would cover. It is also unclear whether this would cover people who are directed not to report to work because schools are closed.
- The Committee on Open Government is working with the Governor’s office on issues such as how to hold Board meetings if public assemblies are restricted in order to contain the spread of disease.
Recommended Actions by School Districts and BOCES to Address the Coronavirus Outbreak
- Communicate With Your Local Health Department. The most recent joint guidance from the New York State Education Department (“SED”) and Department of Health (“DOH”) encourages school districts to communicate with their local health departments. If the health department does not provide its advice or direction in writing, we recommend that school staff document discussions with public health officials. (For example, a follow-up email could confirm what the health official told the school.) The guidance says that state and local health officials will make the final decisions about excluding students and staff, closing schools, and reopening schools.
- Involve Your Director of School Health Services. School districts’ decisions and actions regarding medical issues should be informed by medical advice. The Director of School Health Services (school physician) should be involved in matters involving Coronavirus or other communicable diseases.
- Follow Your Safety and Emergency Response Plans. Every school district and BOCES in New York State should have a district-wide school safety plan and building-level emergency response plans. These plans often address subjects such as communicable diseases and closing schools. If so, when the situation arises, school districts and BOCES should implement the applicable parts of their plans. (This should be with any modifications necessary due to directions from federal, state and/or local government authorities.) These plans should be updated as necessary.
- Review Ongoing and Planned Trips. The most recent guidance says that school districts should suspend school-sponsored travel programs for all students and staff in countries that are currently impacted by CDC travel alerts. The guidance also recommends that school districts develop plans to suspend programs in all other countries, in case they are covered by future travel alerts. Some county health departments are already advising school districts to cancel even domestic trips (such as to New York City). Contact us if you need help with canceling trips.
- Consider Potential Alternate Means of Continuing Instruction During School Closures. The guidance suggests that school districts plan ways to continue to educate students, including students with IEPs, if schools are temporarily closed. Some districts are considering providing instruction through distance learning. In deciding whether to provide instruction online, districts will need to consider whether all students in the district will have access to computers and broadband internet service. It may also be necessary to consider whether it is possible to provide this type of instruction to students with disabilities, or whether other arrangements will have to be made. SED should be considering whether to treat online instruction as a regular day of instruction for state aid purposes.
- Be Careful About Labor Relations Implications. We understand that, at least in some parts of the state, certain unions that are NYSUT locals are presenting school districts with a proposed memorandum of understanding (“MOU”) or “supplemental agreement” concerning school closures. It would commit the district to negotiate certain requirements within two days of the signing of the MOU. We caution against signing this type of MOU as presented. (It is possible that, under some circumstances, a MOU may be useful. However, it should take into consideration the language of the existing collective bargaining agreement. You also shouldn’t be pressured into giving up any rights that you may have under existing law, or under laws or regulations that may be adopted to provide school districts and BOCES with greater flexibility. We are available to assist you as needed.)
We will continue to monitor developments with this issue. Please contact us with any questions or for assistance in dealing with any particular situations.
Official Guidance for School Districts and BOCES
As noted above, there has been a great deal of recent guidance regarding the Coronavirus. That which is most relevant to public schools is posted on the following websites. For your convenience, you may click on the links below to access them.
New York State Education Department – School Health Services
Including:
- Coronavirus (COVID-19) Guidance for P-12 Schools(March 9, 2020)
- Related News Release (March 9, 2020)
- Notification Regarding Closure of a School Building (March 6, 2020)
New York State Center for School Health
This compiles information from a variety of sources for school district personnel.
There is also a section for Medical Director information and resources
New York State Department of Health
Including:
- Interim Containment Guidance (March 9, 2020)
- Interim Testing Guidance (March 9, 2020)
- Update on COVID-19 for New York State Schools (March 3, 2020)
Governor’s Executive Order Declaring a Disaster Emergency (March 7, 2020)
U.S. Centers for Disease Control and Protection (CDC):
Including:
Even before the Coronavirus outbreak, there were helpful resources about how to deal with communicable diseases. For example, see SED’s Managing Emergency Health Care and Communicable Diseases in the School Setting (2019).
If you have any questions, please do not hesitate to contact us.
