COVID-19: What Administrators Need to Know

With the outbreak of COVID-19 or “coronavirus,” school districts have entered unchartered territory when it comes to responding to the many questions this pandemic brings with it. EdCounsel provides the following guidance below in response to the most common questions we’ve received as a result of the coronavirus outbreak.

 

Staff Concerns

 

Can I send a staff member home if s/he is sick?

 

Whether an employee may be sent home as a result of illness will depend on your district policy and whether the employee has a “communicable” or “reportable” disease. Your district policy regarding communicable diseases likely allows you to exclude staff and/or students from school who has a communicable disease that poses a risk of transmission in the school or at school activities, such as chicken pox or the flu.

Also, if a staff member has a “reportable disease” as defined in 19 CSR 20-20.030 (which includes coronavirus), then that regulation requires the individual to be excluded from school. That regulation states the following:

If an individual has or is liable to transmit a reportable disease (which includes coronavirus), that individual must be barred from school until:

  1. The individual provides certification in writing by an attending physician attesting to the person’s noninfectiousness;
  2. After a period of time equal to the longest period of communicability of the disease, as established by certain public health publications; or
  3. When the local health authority declares that the designated health emergency is ended, after consultation or concurrence of the director of DHSS, or his/her designated representative.

If a staff member is ill with a “reportable disease,” the District must exclude that person from the District until one of the above three events occur.

 

Spring break is coming up. Can I require staff members to self-quarantine if they traveled outside the country, or if they went on a cruise?

 

By and large, staff absences and leaves policies allow districts to send staff home if they have a communicable disease, but policies are generally silent regarding a district’s ability to require a staff member to stay home as a result of travel to an area that would result in a recommended quarantine. A district’s board policy regarding pandemics and/or communicable diseases will govern in this instance, which typically also states that a district will work with the state and local health department in responding to any outbreaks of communicable disease.

As outlined in the answer to the question above, 19 CSR 20-20.030, states that if a staff member has or is liable to transmit a reportable disease (which includes coronavirus), that individual must be barred from school until one of the three events above occurs, such as a note from a doctor, the person is no longer contagious, or the health department declares the health emergency has ended. This would mean that if a staff member traveled to a country that was high risk, or went on a cruise, and the person was deemed “liable to transmit” coronavirus as a result, that person could be excluded from school.

Although this process is likely outside the process listed in your district’s policy regarding communicable diseases, we recommend excluding staff members from school if they are “liable to transmit” coronavirus, as determined by the district, in conjunction with Missouri Department of Health and Senior Services (DHSS) or your local health department. We also recommend ensuring proper documentation is provided to the district to limit abuse of any excused absences or paid leave allowed as a result of a decision that a staff member is “liable to transmit a reportable disease” and shouldn’t work.

 

What should I do if the state or a local health department mandates that my employee quarantine?

 

If your employee is under a mandatory quarantine by DHSS or your local health department, your district may want to decide whether the employee should be required to take accrued leave (sick, vacation, personal days, etc.), or if the district will effectively place the employee on paid administrative leave during the time the employee is required to quarantine.

There is no legal mandate in Missouri that an employer continue to pay an employee who is under a quarantine order; however, many districts have decided that it is in the employee’s and the district’s best interests to place the employee on paid leave during the period of a mandatory quarantine and return the employee to full duty once they’re released.

Regardless of which route your district decides to take, we recommend the policy is applied consistently to all personnel, and if your practice falls outside the requirements of policy, including what your district considers to be an “excessive absence,” your Board may need to adopt a resolution outlining the deviation in policy as a result of mandatory quarantines.

It is also possible that if an employee is under a mandatory quarantine order, the FMLA may apply to that leave. WE recommend reaching out to your district’s counsel to determine whether FMLA will apply to an employee’s leave if the employee is under a mandatory quarantine order.

 

What if my staff member has to care for someone who is quarantined?

 

Board Policy regarding staff absences and leave will apply in this situation, unless your Board decides to deviate from policy as a result of coronavirus quarantines. If a staff member’s family member has a serious health condition under the FMLA, leave protections under the FMLA may also apply.

 

What if staff members decide to self-quarantine, but are not mandated to quarantine by a state or local health department?

                                                  

As in a mandatory quarantine situation, a district is not under any obligation to provide greater access to leave than it otherwise provides its staff because a staff member decides to self-quarantine. Your district may place staff on paid leave during this time, provide staff with an unpaid leave of absence, or require staff to use any accrued leave. If the district doesn’t have the ability under policy to grant a specific type of leave that the district would like to provide, the Board has the ability to decide to deviate from policy in these instances.

 

What if my employee’s doctor recommends she quarantine, but s/he isn’t otherwise sick or under a mandatory quarantine?

 

It would be most protective of the district to treat this situation in the same manner it treats staff decisions to self-quarantine. If the district places staff on a leave of absence as a result of a note from a physician, it is possible that the district would be at risk of staff abusing this ability to take leave, and presenting doctors’ notes for leave, regardless of whether the staff member has a health condition that puts them at higher risk of they contract coronavirus.

Your district should also consider whether an employee who presents the district with a physician recommendation for quarantine is eligible for protected leave under the FMLA, or a period of leave as an accommodation under the ADA. (If the employee is not ill, it isn’t likely that FMLA will apply; however, if the employee has a serious health condition and is under the continuous care of a health care provider, it’s possible that this leave would be protected under the law.)

If your district decides to provide staff with paid leaves of absence as a result of a physician recommendation to self-quarantine, we recommend providing all staff with physician recommendations a leave of absence, regardless of whether the recommendation is a result of a known health condition, to avoid any risk for discrimination complaints.

 

We go on spring break soon. What can I tell my staff members about traveling to areas affected by coronavirus or going on cruises?

 

We recommend ensuring your staff are aware of CDC guidance regarding traveling, including that the CDC recommends that individuals not go on cruises at this time, and encouraging to heed the warnings of the CDC. The areas affected by coronavirus are continually being updated, and many high risk areas are closing their borders to travelers.

Due to the risk of potential complaints of Constitutional violations, we do not recommend telling staff they cannot travel to affected areas.

 

How should the district handle staff leave if the district decides to close, or if the district is closed by a state or local health department mandate?

 

How to treat certified and support staff absences and pay during closures is ultimately up to the district. Many districts have decided to treat closures in the same way it would an inclement weather day.

Ultimately, though, support staff are not legally entitled to pay or benefits unless they work, so if the district closes, it may legally decide not to pay support staff for any time not covered by a support staff member’s accrued leave. Certificated staff employed under contracts may have a legal argument that they are entitled to pay despite whether the District is actually open, however, according to the terms of their contracts. In that instance, it may be in the district’s best interest to continue to pay, at minimum, its contracted staff.

Your district may also want to consider whether the length of the closure will have any differing effect on how the district decides to provide pay and benefits to staff.

 

What are the FMLA considerations when an employee wants to self-quarantine or quarantine is recommended by a doctor? What if they’re under mandatory quarantine?

 

With regard to the coronavirus itself, it likely will not fall under the definition of a “serious health condition” if an employee contracts it, unless there are complications (the analysis will likely be a lot like if the employee had the flu). Also, unless a staff member is under a mandatory quarantine order, it’s not likely that self-quarantining for personal reasons or at the recommendation of a doctor will result in FMLA eligibility, either.

As you know, under the FMLA, a “serious health condition” entitling an employee to FMLA leave is “an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115.”

A serious health condition involving continuing treatment by a health care provider includes a period of incapacity of more than three consecutive full calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves:

  • Treatment two or more times within 30 days of the first day of incapacity (unless extenuating circumstances exist) by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider; or
  • Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the health care provider.
    • The first (or only) treatment by a health care provider must be an in-person visit and take place within seven days of the first day of incapacity.
    • A “regimen of continuing treatment” includes, for example, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition.

 

“Incapacity” means an inability to work, attend school, or perform other regular daily activities due to a serious health condition or treatment for or recovery from a serious health condition.

It is likely that if an employee is under a mandatory quarantine order by a health department (DHSS or the local department) because of a risk of coronavirus and is therefore incapacitated, then the employee’s leave would likely be FMLA-eligible because the “continuing care” piece would be met through continual monitoring by a health care provider.

On the other hand, it’s not likely that someone who is self-quarantining (even at the recommendation of the CDC or DHSS) or whose physician recommends quarantine would also be unable to work (as opposed to just not wanting to work) because of a serious health condition, so the FMLA would likely not apply in that instance. If specific circumstances arise that make this a possibility, though, we recommend discussing this in greater detail with your legal counsel.

 

If we’re providing leave to staff as a result of a closure, what should we do with staff who are currently on FMLA leave?

 

Under the FMLA, any time an employee is not scheduled to report for work may not be counted for FMLA leave. Specifically, if an employer temporarily stops business activity and employees are not expected to report to work for one or more weeks, the days the employer’s business activities have stopped do not count against the worker’s FMLA leave.

If your district closes for one or more weeks and during the period of closure, the district is requiring some staff to work but not others, then any employee on leave during the closure whose position would be required to report to work during the closure would be coded as using FMLA leave. Any employee on FMLA leave whose position would not be required to work should be provided leave in the same manner as other staff in their position, and that leave should not be counted against their FMLA leave allotment.

 

Should we postpone renewal discussions, given that the district may close soon in response to the coronavirus?

 

Statutory requirements for notifying staff of non-renewal (teachers and administrators), as well as issuing probationary teacher and administrator contracts remain in effect. Keep in mind that all non-tenured certificated staff, including administrators, must be informed of non-renewal on or before April 15, and must be issued contracts by May 15. If you haven’t yet completed summative evaluations, it may be worthwhile to expedite them, to ensure that statutory deadlines are met with regard to staff contracts and notifications.

 

Student Concerns

 

Can I send a student home from school if they may have been exposed to coronavirus because of recent travel?

 

Just like with staff, your policy likely states that your district has the ability to send students home when they have a communicable disease, but may not allow you to require students to self-quarantine if they are not currently ill. Under 19 CSR 20-20.030, however, if a student has or is liable to transmit a reportable disease (which includes coronavirus), that individual must be barred from attending school until:

  1. The student provides certification in writing by an attending physician attesting to the person’s noninfectiousness;
  2. After a period of time equal to the longest period of communicability of the disease, as established by certain public health publications; or
  3. When the local health authority declares that the designated health emergency is ended, after consultation or concurrence of the director of DHSS, or his/her designated representative.

Although this process is likely outside the process listed in your district’s policy regarding communicable diseases, we recommend excluding students from school if they have or if they are liable to transmit coronavirus, as determined by the district, in conjunction with DHSS or your local health department. We also recommend ensuring proper documentation is provided to the district to limit abuse of any excused absences allowed as a result of a decision that a student is “liable to transmit a reportable disease.”

 

Can I send a student home if they are sick? How long can they be excluded from school?

 

Students who are ill may be sent home and excluded from school according to your typical procedures regarding student illnesses (e.g., if they have a fever, diarrhea, are vomiting, etc.). If a student has a communicable disease, students can also be excluded from school in accordance with your Board Policy on communicable diseases, and/or in accordance with 19 CSR 20-20.030, discussed above. To determine the length of exclusion for a student who has or may transmit a communicable disease, we recommend working in conjunction with DHSS and/or your local health department.

 

Are students allowed to wear face masks?

 

There is no legal prohibition against wearing medical masks at school, but it may be most protective of the district to allow the masks, as long as they’re worn properly. If masks become disruptive for reasons other than the fact that the mask is simply being worn, however, the district may choose to address the disruption according to the student discipline code.

 

 

District Closure Concerns

 

Can we close the district?

 

When to close the district is a local decision, unless the Director of the Missouri Department of Health and Senior Services or your local health department makes the decision to close school. If DHSS or the local health department issues an order to close your district, your district cannot reopen until the order is lifted.

 

If we close, what make-up requirements apply?

 

Unless DESE issues a waiver to schools that close as a result of coronavirus, attendance hour requirements still apply. DESE has indicated, though, that it is currently working to provide flexibility to allow districts to make decisions focused on the health and safety of students, staff and community members. DESE is also recommending that districts request forgiveness of the missed school hours by sending a letter to the Commissioner of Education upon resuming classes.

 

Can we cancel our Board meeting?

There are no requirements within Missouri law regarding how often a district’s Board must meet. If your Board decides to cancel its meeting, we recommend providing notice of that cancellation as soon as possible in the same manner it provides notice of meetings.

Please note, however, that hiring, renewal and termination decisions, as well as the power to enter into contracts, rests with the Board by statute, and these powers cannot be delegated to district staff, including the Superintendent. If any of these decisions are necessary to continue regular operations of the district, they must be made by the Board during a meeting.

 

What is the process for holding an emergency Board meeting to discuss coronavirus?

 

Under typical circumstances, notice must be given at least 24 hours in advance of the time, date and place of a meeting, and the agenda must be posted in a manner reasonably calculated to advise the public of the matters to be considered.

Under § 610.020.4, RSMo., if it is necessary to hold a meeting on less than 24 hours’ notice, or at a place that isn’t reasonably accessible to the public, or at a time that isn’t reasonably convenient to the public, the a good cause statement justifying the departure from the normal requirements under the Sunshine Law must be stated in the minutes.

If there is a coronavirus outbreak in your district necessitating closure and decisions need to be made quickly related to staff pay, deviations from policy, etc., it is likely that the district can hold an emergency meeting without providing the 24-hour notice required under § 610.020, RSMo., holding the meeting in a place that doesn’t accommodate the public, or holding the meeting at a time inconvenient to the public. The reason for deviating from these requirements must affirmatively be stated within the meeting minutes, though, and this emergency exception should only be used in true instances where the circumstances require it.

If an emergency meeting is held and roll call votes are necessary (meaning votes in closed session), a quorum of the members of the District must be physically present, and less than a quorum can be present but participating via telephone, fax, internet, or any other voice or electronic means. The nature of the emergency of the public body justifying that departure from the normal meeting requirements under the Sunshine Law has to be stated in the minutes, and when such an emergency exists, the votes taken shall be regarded as if all members were physically present and in attendance at the meeting.

 

If we hold a Board meeting, can we exclude the public from the room, or allow them to watch in a separate room electronically?

 

The law requires that notices of district Board meetings include the following:

  • The time, date, and place of each meeting,
  • Its tentative agenda, in a manner reasonably calculated to advise the public of the matters to be considered,
  • If the meeting will be conducted by telephone or other electronic means, the notice of the meeting shall identify the mode by which the meeting will be conducted and the designated location where the public may observe and attend the meeting.
  • If a public body plans to meet by internet chat, internet message board, or other computer link, it shall post a notice of the meeting on its website in addition to its principal office and shall notify the public how to access that meeting.

 

The law also states that, “Each meeting shall be held at a place reasonably accessible to the public and of sufficient size to accommodate the anticipated attendance by members of the public, and at a time reasonably convenient to the public, unless for good cause such a place or time is impossible or impractical.”

The statute does not expressly state that the public has to be in the same room as the Board; however, the statute does say that the public needs to be able to “attend” the meeting and that the meeting place must be held at a place reasonably accessible to the public. It is likely that individuals viewing a meeting in a separate room from the Board would not be “attending” a meeting, and therefore would need to be allowed to sit in the same room as the Board during the open session of the meeting in order to be “in attendance.”

 

Can we hold a Board meeting electronically?

 

Meetings many be held electronically under the Sunshine Law, although your district’s Board Policy may dictate specific circumstances under which electronic meetings may or may not be held. If the Board must vote on items in closed session, which then requires a roll call vote, then the meeting must be held via videoconferencing so that the votes of the members participating via videoconferencing count toward the vote of the Board.

If the meeting is held via videoconferencing, the notice of the meeting must identify the mode by which the meeting will be conducted and the designated location where the public may observe and attend the meeting. If the meeting may be accessed electronically, then an access link to the videoconference must be provided to the public via the district website and in central office. Based on the language of the statute, it is likely that if the Board will access the videoconference through a “computer link,” then the district does not have to offer an option to the public to view the meeting in person in a conference room or other physical room in the district.

 

Can the Board delegate powers to the Superintendent?

 

The Board can delegate powers to the Superintendent that are not the Board’s responsibility under the law, as long as those responsibilities don’t fall outside of restraints listed within Board Policy.

Specifically, hiring decisions and at minimum, certified staff non-renewals or tenured terminations, are decisions that rest only with the Board. (Some Board Policies require that the Board make any final determination regarding support staff terminations as well.) Additionally, contracts may only be entered into by approval from the Board, and only the Board can approve proposed budgets for the district.

If your district has any questions about what traditional responsibilities of the Board can be overseen by staff members during a closure, we recommend discussing those with legal counsel.

 

What resources can I review as information is updated on coronavirus?

 

CDC website: https://www.cdc.gov/coronavirus/2019-nCoV/index.html

 

DHSS’s coronavirus website: https://health.mo.gov/living/healthcondiseases/communicable/novel-coronavirus/

 

DESE’s website: https://dese.mo.gov/communications/coronavirus-covid-19-information

 

DESE’s March 13, 2020 guidance: https://dese.mo.gov/sites/default/files/am/documents/COM-20-001.pdf

 

MSHSAA website (coronavirus statements are located under the “announcements” heading on the homepage): https://www.mshsaa.org/

 

Your local health department website may also feature resources and updates applicable to your county.

 

Our attorneys are continuously monitoring this situation to provide up-to-date answers to the most frequently asked questions regarding coronavirus. If you have specific questions you’d like to discuss, don’t hesitate to reach out to one of the team members at EdCounsel!