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WASB COVID-19 Legal & Policy Resources


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WASB Legal and Legislative Update Webinars

January 2021 Legal and Legislative Video Update (recorded Jan. 13, 2021)

The following links jump to topics discussed related to COVID-19:

Refer to the Legal (refer to pages 3-9 for vaccination information) and Legislative Q&A documents.


December 2020 Legal and Legislative Video Update (recorded Dec. 16, 2020)

The following links jump to the point at which each topic was discussed:

Refer to the Q & A document.

**Be aware that the EEOC issued newly updated guidance regarding the COVID vaccine as the webinar was going on so was not discussed during the webinar or included in the webinar Q & A document. Refer to Section K of the EEOC’s newly updated guidance for additional information.


November 2020 Legal and Legislative Video Update (recorded Nov. 1, 2020)

The following links jump to the point at which each topic was discussed:

Refer to the Q & A document.


October 2020 Legal and Legislative Video Update (recorded Oct. 21, 2020)

The following links jump to the point at which each topic was discussed:

Refer to the Q & A document.


September 2020 Legal and Legislative Video Update (recorded Sep. 16, 2020)

Refer to the Q & A document.


August 2020 Legal and Legislative Video Update

On Aug. 19, 2020, legal and legislative staff at the Wisconsin Association of School Boards gave members this timely update about questions they’re receiving about the reopening of schools and provide a legislative update. Many of these common questions and answers can be found in the WASB’s back-to-school Q & A.

[https://youtu.be/Bipn2_fDYYI]


 

Board Governance/Open Meetings Law
Employee Compensation and Leave During the Pandemic

WASB attorneys have received a number of questions regarding employee compensation during a school closure for a pandemic. The following is provided as general information and is not offered as legal advice.  WASB attorneys encourage any member board to refer inquiries about the application of law to any specific factual context to the school district’s legal counsel.

Part of the determination of what to do regarding employee compensation during a school closure for a pandemic depends upon why the employee cannot report to work and whether the district wishes to mitigate the loss of income for the employee. Specific paid leave benefits or wages for teachers and support staff due to a school closure for emergency reasons (like the pandemic) has more variance due to differences in individual contracts, employee handbooks and board policies regarding fitness for duty determinations, leave availability (sick, emergency/personal, vacation, administrative), acceptable uses for such leave and whether the school district has existing emergency school closing language that addresses the make-up of such days, the pay for such days or the ability to use paid leave for such days.

Teachers have individual contracts and those individual contracts will take precedence over other items. If in-person or online learning is not occurring and the teacher is not required to report to work, many districts are keeping teachers in a paid salary basis during any closure due to the pandemic due to the teacher’s individual contract terms. Some districts have decided to pay support staff employees who are not required to report to work.  In order to effectuate that decision, the ability to remain in a paid status might be done through the following:

  1. Determining that existing sick leave/emergency leave/personal leave cover the school closing due to the pandemic; or
  2. Affording the employee the opportunity to remain in a paid status by using any available paid sick leave/emergency leave/personal leave in combination with any available vacation; or
  3. Providing board-approved administrative paid leave to the employee (this would require separate board action since most school districts would not have a provision like this in their existing policies or employee handbooks); or
  4. Advance wages to employees for the lost time and if the district chooses to make it up later, the employee has already been paid for such days.  This may need the voluntary agreement of the employee.

Paying Employee Compensation from Federal Grant Sources

  • Refer to DPI’s School Finance Frequently Asked Questions Document for information on (1) payment of staff salaries with federal grant funds during the COVID-19 pandemic and (2) related accounting and time and effort documentation requirements. (See question 6 on page 2 and the questions included under the Staff Salaries section on pages 10-14).
  • Districts that are planning to pay staff salaries with federal grant funds during the COVID-19 pandemic will need to incorporate language into their written district policies and procedures related to employee compensation during unexpected or extraordinary circumstances. According to the DPI, the cost is not an allowable cost under a federal grant unless it is consistent with a local educational agency’s written policies and procedures. The DPI has drafted sample policy language to expedite the incorporation of such information into a district’s official policy, which is based on guidance provided by the U.S. Department of Education. Subscribers to WASB’s Policy Resource Guide should look for this sample policy in the online PRG under the policy code 671.5.
  • Refer to U.S. Department of Education’s April 8 guidance for information on paying the compensation of an employee paid with federal grant funds during the period the employee is unable to work because school is closed due to the pandemic.

Use of State Categorical Aids for Personnel Costs

  • According to the DPI, personnel costs incurred during the COVID-19 health emergency will remain eligible for certain state categorical aids. In order for salaries, wages, paid leave and other employee benefits to remain aid-eligible, compensation must be paid consistent with the district’s policies and procedures for paying compensation from all funding sources, federal and non-federal, under unexpected or extraordinary circumstances. (Refer to the sample policy language referenced above.) The district must also continue to pay for similarly situated employees whose compensation is not aid-eligible. Employees being redeployed to other roles and serving the greater good in a meaningful capacity (e.g., deep cleaning, delivering meals) may continue to be paid with funds eligible for state categorical aids, assuming those employees would otherwise be eligible for paid leave and are not required for direct services under their usual aid-eligible positions. Districts do not need to create and maintain time and effort documentation for aid-eligible employees redeployed to other roles during the health emergency.
  • For additional information on the state categorical aids falling under the above-mentioned DPI determination, and the specific eligibility details for each, refer to School Financial Services COVID-19 Update #6 (issued on April 27). Due to the student-driven nature of High Cost Special Education Aid, the DPI is not able to include it in this determination.

Additional Resources:

  • The requirement that employers provide paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA) expired on Dec. 31, 2020. Refer to the U.S. Department of Labor’s FFCRA Questions and Answers page to learn more about workers’ and employers’ rights and responsibilities after this date. School officials should keep in mind that state and federal family and medical leave laws and local school district employee leave provisions still apply.
Unemployment Compensation During the Pandemic

WASB attorneys have received multiple questions regarding unemployment compensation during the COVID-19 pandemic. The following is provided as general information and is not offered as legal advice.  WASB attorneys encourage any member board to refer inquiries about the application of law to any specific factual context to the school district’s legal counsel. Refer to the Wisconsin Department of Workforce Development (DWD) “Unemployment Compensation Guide” that addresses educational employees and reasonable assurance.

Additional Information and Resources:

  • Effective 11/2/20, all employers (including school districts) are required to provide each employee who separates from employment, for any reason, a new notice regarding the availability of unemployment insurance benefits. The new requirement was established in an Emergency Rule of the DWD. The notice is to be provided to the employee “immediately” at the time of separation. It can be provided by letter, email, text message, flyer/poster, or any other DWD-approved method. Simply adding the notice to the district’s employee handbook would NOT be sufficient
    • A sample notice and additional information about the new requirement can be found on the DWD’s website.
    • School districts may wish to add the following statement to the DWD’s suggested notice language: “Pursuant to Section DWD 120.02 of the Wisconsin Administrative Code, the School District is required to provide this notice regarding unemployment benefits to any employee who separates from employment for any reason. This notice is not a determination of your eligibility for unemployment insurance benefits. The Wisconsin Department of Workforce Development is responsible for making decisions regarding eligibility.”
  • 2019 Wisconsin Act 185 included a number of changes to the state’s unemployment insurance program for which school districts should be aware. Under Act 185, the one-week waiting period for the receipt of benefits is inapplicable to claimant benefit years that begin after March 12, 2020, and prior to February 7, 2021. Another significant temporary change to unemployment insurance concerns the extent to which regular benefits will be charged back to employers.
  • On April 2, the U.S. Department of Labor issued new guidance (Unemployment Insurance Program Letter 14-20) outlining relevant provisions of the Coronavirus, Aid, Relief, and Economic Security (CARES) Act related to the administration of and eligibility criteria for state unemployment insurance programs, including Pandemic Unemployment Assistance for those not typically eligible for unemployment insurance, and expanded unemployment insurance benefits.
  • On 12/27/20, the Continued Assistance Act of 2020 (known earlier as the Emergency Coronavirus Relief Act) was signed into law and includes unemployment insurance benefit provisions. Refer to the DWD website for further information about these provisions, which include benefits that unemployed individuals may be eligible to receive if they are not eligible for regular unemployment insurance (UI) benefits. The DWD is currently reviewing the new program requirements and implementation of the extensions so check back to the DWD website for further updates.
Related School District Policies/Procedures/Plans

School officials can help control the spread of respiratory viruses and other communicable diseases by making employees, students and parents aware of Related School District Policies, Procedures and Plans and making sure that they are followed.

  • Refer to the April 2020 Policy Perspectives for information on the suspension/waiver of board policies during the COVID-19 pandemic.
  • Policies Addressing Employee Compensation During Extraordinary Circumstances – Districts paying staff compensation with federal grant funds or certain state categorical aid during the COVID-19 pandemic will need to incorporate language into their written district policies and procedures related to employee compensation during unexpected or extraordinary circumstances. According to the DPI, the cost is not an allowable cost unless it is consistent with the district’s policies and procedures for paying compensation from all funding sources, federal and non-federal, under unexpected or extraordinary circumstances. The DPI has drafted sample policy language to expedite the incorporation of such information into a district’s official policy. Subscribers to WASB’s Policy Resource Guide should look for this sample policy in the online PRG under the policy code 671.5.
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Fitness for Duty
  • On March 21, 2020, the EEOC updated previous guidance in response to the COVID-19 Pandemic, consistent with the Americans with Disabilities Act (ADA) and the Rehabilitation Act workplace protections and rules. The updated guidance includes the following introductory note:The EEOC is updating this 2009 publication to address its application to coronavirus disease 2019 (COVID-19).  Employers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of this disease and protect workers, customers, clients, and the general public.  The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace.
Insurance-Related Issues
  • Refer to the Federal Emergency Management Agency (FEMA) fact sheet entitled “Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures,” which outlines appropriate actions that are necessary to protect public health and safety and provides guidance on the types of emergency protective measures that may be eligible under FEMA’s Public Assistance Program, in accordance with the COVID-19 Emergency Declaration, in order to ensure that resource constraints do not inhibit efforts to respond to this unprecedented disaster.

 

  • September 2020 WASB Legal Comment entitled “Liability Waivers and the COVID-19 Pandemic”
Telework
  • On August 24, the U.S. Department of Labor issued guidance (Field Assistance Bulletin No. 2020-5) regarding employers’ obligation under the Fair Labors Standards Act (FLSA) to track the number of hours  of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers. The FLSA generally requires employers to compensate their employees for all hours worked, including work not requested but “suffered or permitted”, including work performed at home. If an employer knows or has reason to believe that work is being performed, the employer must count the time as hours worked. The FLSA requires employers to exercise control to ensure that work is not performed that they do not want to be performed.
    • According to the DOL, one way an employer may exercise reasonable diligence in acquiring knowledge of additional unscheduled hours worked by their employees is to provide a reasonable reporting procedure for non-scheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee fails to report unscheduled work hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours. However, an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he/she has worked. An employee may not waive his/her rights to compensation under the FLSA.

 

  • Refer to the Partnership on Employment & Accessible Technology (PEAT) Telework and Accessibility Toolkit, which is intended to help equip employers and employees with the information needed to ensure the digital workplace is accessible to everyone, including people with disabilities. It incorporates resources on creating accessible digital communications, being an effective teleworker, conducting accessible virtual interviews, and more.

Resources for Staff When Providing Virtual Instruction

  • Refer to the May 2020 issue of WASB’s policy publication The FOCUS entitled “Providing Virtual Instruction: Some Special Considerations to Keep in Mind”  (requires log-in and is accessible only to FOCUS subscriber districts) The issue addresses a few of the special legal and other considerations and challenges that exist when school districts utilize a system of virtual instruction. Specifically, the issue addresses: (1) equity and access, (2) students with disabilities, (3) student privacy, (4) cybersecurity, and (5) copyright considerations for staff as they transition from face-to-face classroom lessons to virtual instruction.

 

  • Student Record Information and Privacy – Refer to U.S. Department of Education’s Student Privacy Policy Office FERPA and the Coronavirus Disease 2019 (COVID-19) Resources, which include FAQ’s and information related to virtual learning. Refer to the recording of the Student Privacy Policy Office’s March 30 webinar entitled “FERPA & Virtual Learning During COVID-19” which, among other things, addresses commonly asked questions related to the challenges of complying with student privacy laws like the Family Educational Rights and Privacy Act (FERPA) during this time and presents a series of scenarios which highlight privacy best practices and considerations when adopting distance learning approaches.

 

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