On Friday, March 13, 2020, at the direction of Governor Evers, the Secretary of the Wisconsin Department of Health Services ordered the closure of all public and private Wisconsin schools for purposes of public instruction and extracurricular activities for the period beginning Wednesday, March 18, 2020, with an anticipated reopening on April 6, 2020. The closure of all public and private Wisconsin schools has created challenges for school districts as they navigate the new “normal” for educating the students of Wisconsin. This Q & A seeks to answer the various questions raised, to date, as we adjust to this new “normal.”
As this is a fluid situation, we understand school districts face new questions at every turn. Because of that, von Briesen is pleased to invite your virtual presence at a town hall-style webinar: “A Thoughtful Conversation on COVID-19” on Wednesday, March 18 at 3:00 p.m. While the webinar will not follow a typical presentation style, the von Briesen School Law Team will address continuing concerns in light of school closures with school re-opening considerations on the horizon. The conversation will build upon the Qs & As addressed below to keep you up-to-date on the latest considerations for your school district.
The 90-minute webinar format will allow for audience participation (through messaging) and will allow the presenters to focus comments on the questions most pressing to school district leadership. To register for the webinar, please click here. In the meantime, if there are particular questions or topics that you would like to see addressed on Wednesday, please email them to Chrissy Hamiel at email@example.com.
Instruction and Pupil Considerations:
Q1: Does the provision of virtual learning opportunities by a school district allow such virtual learning during the school closure to be counted as “hours of instruction” pursuant to Wis. Stat. § 121.02(1)(f) and Wis. Admin. Code § PI 8.01(2)(f)?
A1: School districts are required to meet the hours of instruction set forth in Wis. Stat. § 121.02(1)(f) and Wis. Admin. Code § PI 8.01(2)(f), which provides schools to hold the following hours of direct pupil instruction:
- 437 hours in kindergarten
- 1,050 hours in grades 1 through 6
- 1,137 hours in grades 7 through 12
The hours are computed from the start to the close of the school’s daily instructional schedule. The statute and administrative code specifically allow hours of instructional programming offered through innovative instructional designs to satisfy the hours of instruction requirement. Further, virtual compensatory instruction offered when schools are closed for inclement weather satisfies the hours of instruction requirement, so long as instruction is provided. While the statutory provision and administrative rule do not contemplate a school closure created by a public health emergency and there is no judicial interpretation of such provisions, arguably, the provision of virtual instruction and other innovative instructional designs will suffice to satisfy the hours of instruction standard.
Q2: Is an LEA required to continue to provide FAPE to students with disabilities during the school closure?
A2: The IDEA, Section 504, and Title II of the ADA do not specifically address a school closure. However, where an LEA closes schools and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. If the LEA continues to provide educational opportunities to the general student population during a school closure, then the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.
Q3: Upon re-opening, what are an LEA’s obligations to students with disabilities?
A3: An LEA must make every effort to provide special education and related services in accordance with the student’s IEP or Section 504 plan. The IEP or Section 504 team would also be required to make an individualized determination as to whether compensatory services are required.
Q4: Is the LEA required to convene an IEP meeting for the provision of virtual instruction provided during a school closure? Is a meeting or communication to the parent sufficient?
A4: A school district should make every effort to communicate and/or meet virtually with a parent regarding a student’s IEP and the provision of services during a school closure. OSEP, however, has indicated that schools are not required to convene an IEP team for purposes of revising a student’s IEP. Rather, OSEP considers virtual instruction to be an alternate mode of instructional delivery. Once a school re-opens and students return to school, the IEP team must take the alternate mode of instruction into consideration as revisions to the IEP are contemplated.
Q5: When a school district provides virtual instructional services and virtual consultative support, must such instruction and support be equal in frequency and duration as to what is set forth in a student’s IEP?
A5: OSEP has indicated that it is not requiring LEAs to meet all the time set forth in an individual student’s IEP, but rather, would consider what is most appropriate for a particular student to make progress in the curriculum and progress toward the individual student’s goals and objectives. In other words, the provision of SDI to students during a school closure need not be an exact minute for minute match to the student’s IEP, so long as the instruction and support provided is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
Q6: Are the timelines imposed upon LEAs for conducting annual IEP meetings, evaluations, and/or re-evaluations suspended during a school closure?
A6: While there is no statutory or regulatory provision for suspension of the timelines set forth in the IDEA for annual meetings, evaluations, and/or re-evaluations, OSEP has suggested they continue to have conversations relative to timelines, funding implications, and flexibility and relief that should be provided to school districts as a result of school closures. OSEP will be releasing further guidance in this regard in recognition of the need for flexibility in light of the unintended consequences of school closures.
Q7: How should a school district document decisions made during the period school is closed?
A7: An LEA may wish to consider use of prior written notice (“PWN”) for documenting decisions related to the provision of special education and related services. Under 34 C.F.R. § 300.503(a), a school district must provide PWN whenever the school district: (1) proposes to begin or change the identification, evaluation, or educational placement or the provision of FAPE; or (2) refuses to begin or change the identification, evaluation, or educational placement or the provision of FAPE. While all decisions related to the provision of services to a student with a disability during the school closure may not require PWN, PWN ensures a school district is appropriately documenting decisions while providing written notice to the parent(s)/guardian(s) of such decision making.
Q8: Will school districts see relief by way of additional funding, specifically for special education?
A8: OSEP’s fiscal team is reviewing funding concerns. At this point, no additional funds have been allocated, but OSEP continues to review options for doing so.
Q9: Should our school district continue to offer breakfast and lunch through the free and reduced meal program?
A9: The decision as to whether to continue to offer free and reduced meal services is an entirely local decision to be made by individual school districts. While not required, many school districts recognize food insecurity is an issue faced by many families served within a school community. To that end, many districts are exploring alternative options, such as “grab-and-go” options, designated pick-up locations, and providing meal services in shifts to smaller groups of children in need. School districts should ensure that any meal services provided by the school district adhere to the school closure declaration, as well as the program requirements under federal law.
Q10: If a student engages in misconduct during the period of the school closure, must we convene an expulsion hearing within 15 days?
A10: There is no requirement under state law to commence an expulsion hearing within 15-school days of the conduct leading to an expulsion recommendation. Generally speaking, expulsion hearings are commenced within 15-school days of the conduct giving rise to an expulsion recommendation because state law only allows a student to be suspended for a maximum period of 15-school days. If a pupil engages in misconduct that would give rise to a recommendation for expulsion, a school district must then determine the appropriateness of a suspension and the interplay between a suspension and the timing of an expulsion hearing.
Q11: If an expulsion hearing was already scheduled to occur during what is now the period of the school closure, how should we proceed?
A11: A school district should carefully consider how to proceed with an expulsion hearing during the period of school closure. Arguably, under the DHS Secretary’s school closure order, an in-person hearing could take place within school district buildings. However, in an effort to comport with the purpose of the order — that is, to engage in social distancing — all safe measures should be considered if conducting an expulsion hearing.
Generally speaking, expulsion hearings proceed within 15-school days of the conduct leading to an expulsion recommendation. This is because Wis. Stat. §120.13(1)(c) allows for pupil suspensions of no more than 15 school days. However, if a school district is completely closed, meaning no instructional hours are occurring during the school closure, then the school closure period would not include “school days” such that the school closure would not count towards the 15 school days that a student can be suspended. In the case of a complete closure, a district could hold the expulsion hearing after schools reopen, bearing in mind that a hearing must be conducted within 15 school days if the school district intends for the pupil to be suspended and out of school pending the expulsion proceedings.
On the other hand, if a district school is closed but offering virtual instruction counting towards the required hours of instruction, then the hours of virtual instruction likely would count as “school days” for purposes of counting days for a suspension. Considering that holding an in-person hearing is ill-advised at this time, and holding a virtual expulsion hearing has the potential to diminish the student’s due process rights, districts may wish to forgo suspension, thereby allowing the student to attend virtual classes during the period of school closure, and commence expulsion proceedings upon reopening.
Q1: Must exempt staff continue being paid during the period of school closure?
A1: This may depend on the language of the individual teaching contract, including the existence of layoff language. Absent contract language, employees are not required to be paid when no work is performed in a given workweek. That said, if a school district is providing virtual instruction, exempt staff providing such services should either continue receiving their regular salary per the terms of their individual employment contracts, or school districts could require staff who have paid leave available to draw down any available leave banks first.
Q2: Can a school district require exempt staff to work from home during the school closure period?
A2: Yes. However, an exempt employee must receive their full weekly salary for any week in which the employee performs any work without regard to the number of days or hours worked even if the employee only works more than a de minimis amount of the 40 hour week — unless a permissible deduction applies under Fair Labor Standards Act Safe Harbor principles, intermittent use of FMLA resulting in unpaid leave, or for FLSA Public Accountability principles.
Q3: Can a school district require exempt staff to use available leave banks to continue to be compensated during the school closure?
A3: Yes. However, if a school district continues to provide work for exempt staff, a school district should analyze whether the amount of work performed by the employee justifies payment of the employee’s regular salary. It is not uncommon for exempt employees who are on a paid leave to perform some services for a school district. However, depending upon the amount of work performed, an employee may be entitled to full salary instead of the requirement that the employee draw down his/her leave bank.
Q4: Do we have to pay nonexempt (hourly) staff during the school closure period?
A4: No, however, House Bill H.R. 6201 may change this determination. Currently, nonexempt staff are not required to receive pay if they are not working during this period. That said, school districts recognize the hardships that will befall many employees and thus, many districts are exploring options for continuing to compensate nonexempt employees. Many districts are allowing employees to exhaust all leave options available, including sick, personal, and vacation leave. Another option is to continue to pay employees, as budgeted, for all instructional hours that will not need to be “made up” to satisfy school district standards set forth in Wis. Stat. § 121.02(1)(f) and Wis. Admin. Code § PI 8.01(2)(f). Further, some districts are finding ways for support staff employees to perform some of their duties (such as paraprofessionals providing virtual support to individual students) to allow for a portion of compensation to be paid. Additional options include: allowing nonexempt staff to perform other work for the school district to continue to earn wages or wage advancement agreements, allowing for wages to be advanced and work time made up when the school reopens, essentially creating a bank of time. While none of these compensation considerations are required, consideration of employee hardship will certainly serve to benefit districts with retention of staff upon reopening of schools.
Q5: Can we require essential staff to report to district buildings after March 18, 2020, or would that requirement go against the order for statewide school closure from the Wisconsin Department of Health Services?
A5: There is no authority under the law delineating which employees are essential versus nonessential, or how such designations factor into whether or not staff may be required to report to work. Rather, the designation of “essential” staff is a local decision of a school board. The school closure order from DHS Secretary Palm ordered the closure of all public and private schools in Wisconsin for the purposes of “pupil instruction” and “extracurricular activities.” While it would not necessarily violate the order for essential staff to report to work, given the current climate, districts should exercise caution and be selective about ordering staff to report. Consider instead whether essential staff can carry out their necessary job functions while working from home.
Q6: Can I send employees home who are exhibiting flu-like symptoms?
A6: Yes. The CDC states that employees who become ill with symptoms of influenza-like illness should leave the workplace. We recommend that school districts request that employees disclose exposure and/or influenza-like symptoms so those employees can be sent home.
Q7: Can I ask employees to disclose if they are experiencing influenza-like symptoms?
A7: Yes. However, be aware that a school district must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Q8: Am I required to allow employees to work from home?
A8: Maybe in limited circumstances. The EEOC has said that employees with disabilities that put them at high risk for complications may request telework as a reasonable accommodation to reduce their chances of infection.
Q9: Do I have to provide paid leave to employees who miss work for reasons related to COVID-19?
A9: Not yet. As discussed below, there is federal legislation pending that will require employers with less than 500 employees to provide up to twelve (12) weeks paid leave. Until that law goes into effect, employers are not required to offer paid leave in addition to their standard leave policy.
HR6201 - Families First Coronavirus Response Act
Q1: What does HR 6201 require?
A1: The House of Representatives recently passed H.R. 6201, the Families First Coronavirus Response Act. The bill is now before the Senate and may change, but the current version anticipates an effective date of March 31, 2020. You can find a detailed review of the proposed legislation here but the highlights include:
- The bill applies to all government employers (school districts).
- Paid leave is available to employees who have been on the job for at least 30 days.
- Eligible employees are entitled to up to 80 hours of paid sick leave for quarantine due to exposure or for treatment of coronavirus, to care for an at-risk family member, or to care for a child if the child’s school or daycare has been closed.
- The sick leave is paid at the employee’s regular rate if used for their own quarantine or treatment and the sick leave is paid at two-thirds the employee’s regular rate to care for a family member or provide child care.
- The bill also provides for twelve weeks of job-protected leave to be used for the same reasons. The first two weeks is unpaid and the remaining ten weeks is paid at two-thirds the employees regular rate.
- The combined sick leave and FMLA benefits under the proposed bill provide up to twelve weeks of paid leave that must be provided in addition to the employer’s regular leave policies.
Q1: May a school board hold meetings remotely, such as telephonic or video-conferencing?
A1: Many school boards have adopted Robert’s Rules of Order (“RRO”). RRO states that boards may hold meetings by conference telephone call only if the bylaws specifically authorize the group to do so. Most boards, however, have not specifically adopted policies to allow for telephone or video conferencing. It would be prudent for a school board to adopt a resolution authorizing use of telephonic and/or video conferencing for use in emergency situations. If a school board does so, such meetings must be conducted in such a way that all members participating can hear each other at the same time, and rules should be adopted to specify the equipment required to participate, as well as methods for seeking recognition, obtaining the floor, submitting motions in writing, determining the presence of a quorum, and taking and verifying votes. Such board meetings must also be conducted in a manner to allow public access. The Department of Justice’s Office of Open Government has provided an advisory for local governments with respect to open meeting obligations in the wake of social distancing which may be accessed here.
Q2: May a school board member attend via alternate participation, such as telephonic or video-conferencing?
A2: There is no express statutory provision within the Open Meetings Law that allows remote attendance by a board member. As with telephonic or video-conferencing by the board as a whole, remote participation by an individual board member via telephone or video conference requires specific authorization by the board. A school board wishing to allow its individual board members to attend meetings remotely should adopt a resolution authorizing such electronic attendance, as well as the procedure for and limits to such remote attendance. Caution should be exercised for remote attendance for closed session, where due process interests are at stake, or in case of quasi-judicial proceedings (expulsions, employee discipline, etc.).
Q3: May a school board live stream a meeting for public viewing versus allowing attendance at the board meeting itself?
A3: There is no express statutory authority allowing for a school board meeting to be live streamed to the public as opposed to allowing for in-person public participation. Under Open Meetings Law, meetings of school boards are required to be held in open session, which is defined as “a place reasonably accessible to members of the public and open to all citizens at all times.” Assuming a school board has technology which allows members of the public to access the meeting, a live stream feed of a school board meeting appears to conform with the requirements of the Open Meetings Law. There are many platforms available that allow for conferencing and live streaming (Google Hangouts is providing its premium platform free during the coronavirus outbreak that allows livestreaming for up to 100,000 individuals). If a school board is to allow for livestreaming of its meetings, a school board should adopt a resolution authorizing such action, as well as the process, equipment, and access protocol for a live stream. In addition to seemingly satisfying the requirements for an open session meeting, allowing for the public to access a school board meeting via live stream comports with the public policy of Open Meetings Law – “that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.”
Q1: We are going to referendum on April and have board member seats up for election. How does the school closure impact voting and the potential passage of the referendum and school board members?
A1. This will depend upon whether voting is suspended or not. As of yet, voting is still set to occur. Generally, board members hold their seat until after the election and upon new members being sworn in. If an election is delayed, terms may be extended unless a member elects to resign prior to an election or the swearing in of a new member.
Q2: Who has the authority to determine instructional issues and how a school district will proceed in light of the school closure? Is authority vested in the Board or the Superintendent?
A2: Actual closure is most likely a Board decision if school was closed prior to the order of the DHS Secretary under the direction of the Governor. School boards may consider delegating some authority to the Superintendent to act during the closure relating to day to day operations. The two-hour emergency meeting notice is available to school boards and under the current situation, some emergency meetings may be necessary.
Q3: Should the Board pass an emergency resolution authorizing the Superintendent to have all authority to make decisions necessary and appropriate during school closure?
A3: A general resolution may be advisable, but with regular updates to the school board. Powers reserved by statute to the school board would generally remain with the board.
Questions abound and the issues associated with school closures continue to evolve. We invite you to participate in our town hall-style webinar this Wednesday to continue the conversation in a collaborative fashion. Please join us at 3:00 p.m. on Wednesday, March 18 through registration at the following link.
von Briesen & Roper Legal Update is a periodic publication of von Briesen & Roper, s.c. It is intended for general information purposes for the community and highlights recent changes and developments in the legal area. This publication does not constitute legal advice, and the reader should consult legal counsel to determine how this information applies to any specific situation.