Legal Update Memo No. 26-2020 – CDE Provides Information Related to Grading and Graduation (K-12)

Download pdf: 26-2020 – CDE Provides Information Related to Grading and Graduation w attachment (DLM)

On April 1, 2020, the California Department of Education (“CDE”) released a Frequently Asked Questions (“The FAQ”) regarding grading and graduation requirements during this period of “distance learning.”[1]  The FAQ makes it clear that grading remains a local decision.  Here are some key takeaways:

  • In addition to traditionally used grading rubrics, which remain an option, Local Educational Agencies (“LEAs”) are permitted to award credit/no credit, pass/fail or a modified A-C or A–D as student grades. New distance learning and grading policies should be arrived at in consultation with the local bargaining unit and as reflected in locally-negotiated agreements.  Changes should be clearly communicated to staff, students, and families.[2]  Grading policies should, as always, take into consideration English Learners, homeless and foster youth, and differing access among students to digital learning and other tools or materials.
  • The University of California (“UC”), California State University (“CSU”), Community College systems and the Association of Independent Colleges and Universities are willing to accept credit/no credit grades in lieu of letter grades for all courses, including A–G courses, completed in winter/spring/summer 2020 for all students. Grades of credit/no credit will not affect the UC or CSU calculations of GPA.
  • Spring semester grading decisions should take into consideration the way grades can or will be determined to illustrate overall performance. This determination should seek to support students in preserving the progress they made prior to school closures and enabling them to demonstrate further learning in ways that are appropriate to their context. Educators may need to consider their overall learning goals; alternative means of administering tests, projects, and other assessments; adaptations to assignments; revised weighing in individual teacher gradebooks; and prioritizing the assessment of student mastery of essential standards.
  • An LEA may seek a waiver of graduation requirements from the State Board of Education “for specific students.”[3] The CDE expects LEAs to enable students to complete state graduation requirements with the flexibility that may be necessary based upon “the nature of assignments and mode of grading during any period of school closure.”  Also, LEA boards may modify policies setting graduation requirements higher than the state minimum.
  • Attached to this Legal Update is a chart of second semester grading options being employed throughout the state, and considerations related to adopting these options.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1]  https://www.cde.ca.gov/ls/he/hn/gradegraduationfaq.asp (last visited on April 2, 2020).

[2]  An exemplar is Palo Alto’s recent communication of its credit/no credit policy for the remainder of the school year: https://www.pausd.org/explore-pausd/news/superintendents-message-extended-closure-secondary-grading.

[3]  As with any waiver request, the employee association must have an opportunity to participate in the development of the waiver and the waiver must be approved at a public hearing of the board. More information on the SBE waiver process can be found on the CDE Waiver web page at: https://www.cde.ca.gov/re/lr/wr/.

Legal Update Memo No. 16-2020 – Sonoma County Strengthens and Extends Shelter in Place and Orders Mandatory Social Distancing Protocols (CCD)

Download pdf: 16-2020(CC) – Sonoma County Strengthens and Extends Shelter in Place w attachments (DLM-SHS-JH)

Sonoma County’s Public Health Officer revised the Shelter in Place Order, effective today, April 1, 2020, through May 3, 2020, or until it is rescinded or revised (“Order”).[1]  The Order was issued in light of the existence of 73 active cases of COVID-19 in Sonoma County, as well as 1 fatality, as of March 31, 2020.[2]  The County has confirmed through testing that every section of the County suffers from infection. Overall, the intent of the order is to maximize self-isolation in residences to the maximum extent feasible.  The Order incorporates all State and Federal mandates.  While much remains unchanged from the previous order, there are some new aspects to this Order which affect local education agencies (“LEAs”), including guidance on construction projects and notice requirements.  Violation of the Order is enforceable by law enforcement, and “constitutes an imminent threat and menace to public health, constitutes a public nuisance, and is punishable by fine, imprisonment, or both.”

Generally

Under the Order, County residents may only leave their homes to perform: Essential Activities, Essential Governmental Functions, to work for Essential Businesses, or to perform Minimum Basic Operations for non-essential businesses.

“Essential Activities” means activities necessary for a person’s own health and safety (such as urgent medical appointments and groceries), and does not include construction.

“Essential Governmental Functions” is defined as a function that is “determined [essential] by the governmental entity performing those functions in the County.”

“Essential Businesses” includes educational institutions, defined as public and private K-12 schools, colleges, and universities, for purposes of facilitating distance learning or performing Essential Functions, provided that social distancing of six-feet per person is maintained.

Essential Businesses are directed to maximize the number of employees who work from home.  Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.

Residents are to employ the following social distancing and hygiene requirements, which have not changed from the previous order:

  • Maintain at least six-foot social distancing from individuals who are not part of the same household or living unit;
  • Frequently wash hands with soap and water for at least 20 seconds, or using hand sanitizer that is recognized by the Centers for Disease Control and Prevention as effective in combatting COVID-19;
  • Cover coughs and sneezes with a tissue or fabric or, if not possible, into the sleeve or elbow (but not into hands); and
  • Avoid all social interaction outside the household when sick with a fever or cough.

Notice of Social Distancing Protocol

Under the Order, all Essential Businesses, including educational institutions, shall prepare, post, and implement a Social Distancing Protocol at each of their facilities at which they are maintaining operations by no later than 11:59 p.m. on April 2, 2020.

The Social Distancing Protocol must be substantially in the form provided by the County (see attached) and must be provided to each employee performing work at the facility. In addition, the Protocol must be posted at or near the entrance of any relevant facility and must be easily viewable to the public and employees. Finally, Essential Businesses must post a sign at the entrance of the facility informing all employees to not enter if sick, maintain a six foot distance, cough and sneeze into one’s elbow, and refrain from any unnecessary physical contact. We have attached a model sign to this Legal Update for your use.

Child Care Facilities

The Order requires, “to the extent possible,” that childcare facilities operate under the following conditions:

  • Childcare must be carried out in stable groups of 12 or fewer (“stable” means that the same 12 or fewer children are in the same group each day).
  • Children shall not change from one group to another.
  • If more than one group of children is cared for at one facility, each group shall be in a separate room. Groups shall not mix with each other.
  • Childcare providers shall remain solely with one group of children.

Essential Government Functions

Each governmental entity must identify and designate appropriate employees, volunteers, or contractors to continue providing and carrying out any Essential Governmental Functions, including the hiring or retention of new employees or contractors to perform such functions.  Each governmental entity and its contractors must employ all necessary emergency protective measures to prevent, mitigate, respond to and recover from the COVID-19 pandemic, and all Essential Governmental Functions must be performed in compliance with social distancing and hygiene requirements, described above, to the greatest extent feasible.

Travel

People must use public transit only for purposes of performing Essential Activities or to travel to and from work to operate Essential Businesses or maintain Essential Governmental Functions.  The Order permits travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services.  People riding on public transit must comply with social distancing and hygiene requirements.  The Order allows travel into or out of the County to perform Essential Activities, to operate Essential Businesses, or maintain Essential Governmental Functions.  Hotels and short-term lodgings are permitted to rent to those involved in an Essential Business or an Essential Governmental Function to the degree the guest is engaged in such activities while lodging.

Construction

An Essential Business includes construction, but only:

1)   Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;

2)   Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so;

3)   Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed; and

4)   Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the habitability, sanitation, and operation of residences and Essential Businesses, but not for cosmetic or other purposes.

Essential Business also includes: Projects immediately necessary to the maintenance, operation or repair of Essential Infrastructure. Essential Infrastructure is not defined but includes airports, utilities, roads, public transportation, mortuary services, and telecommunication services. It is important to note that in the County’s March 17, 2020 Order, “public works construction” was listed as an Essential Infrastructure project. In this Order, which supersedes the prior Order, Public Works Construction is now considered an “Essential Business” only if it is designated as an Essential Government Function by the lead government agency.

Reading the various provisions of the Order together, public works construction projects may only continue if the LEA makes written determination that the project is an Essential Governmental Function, or is necessary to ensure that a building is safe, sanitary, or habitable so that a district can continue to provide the Essential Functions of distance learning and/or providing food to students. Such a project may also only continue if the posting and compliance of required social distancing measures are followed.  Otherwise, the only work that can occur on a public works project is the construction necessary to ensure that the existing construction site that must be shut down is left in a safe and secure manner.

Making a determination whether a public works project should move forward as an Essential Governmental Function, or be shut down and delayed involves an analysis of a variety of factors, including: workers’ compensation and other liability issues; SB 117 payment issues; OSHA obligations; monitoring employees’ health; social distancing requirements; determining the location of where Essential Services are provided; and possible contract addenda. Accordingly, we strongly recommend that districts contact legal counsel for assistance with making these determinations.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] The Order can be found online at https://socoemergency.org/order-of-the-health-officer-of-the-county-of-sonoma/.

[2] See https://socoemergency.org/emergency/novel-coronavirus/coronavirus-cases/ for up to date Sonoma County coronavirus statistics.

Legal Update Memo No. 25-2020 – Sonoma County Strengthens and Extends Shelter in Place and Orders Mandatory Social Distancing Protocols (K-12)

Download pdf: 25-2020 – Sonoma County Strengthens and Extends Shelter in Place w attachments (DLM-SHS-JH)

Sonoma County’s Public Health Officer revised the Shelter in Place Order, effective today, April 1, 2020, through May 3, 2020, or until it is rescinded or revised (“Order”).[1]  The Order was issued in light of the existence of 73 active cases of COVID-19 in Sonoma County, as well as 1 fatality, as of March 31, 2020.[2]  The County has confirmed through testing that every section of the County suffers from infection. Overall, the intent of the order is to maximize self-isolation in residences to the maximum extent feasible.  The Order incorporates all State and Federal mandates.  While much remains unchanged from the previous order, there are some new aspects to this Order which affect local education agencies (“LEAs”), including guidance on construction projects and notice requirements.  Violation of the Order is enforceable by law enforcement, and “constitutes an imminent threat and menace to public health, constitutes a public nuisance, and is punishable by fine, imprisonment, or both.”

Generally

Under the Order, County residents may only leave their homes to perform: Essential Activities, Essential Governmental Functions, to work for Essential Businesses, or to perform Minimum Basic Operations for non-essential businesses.

“Essential Activities” means activities necessary for a person’s own health and safety (such as urgent medical appointments and groceries), and does not include construction.

“Essential Governmental Functions” is defined as a function that is “determined [essential] by the governmental entity performing those functions in the County.”

“Essential Businesses” includes educational institutions, defined as public and private K-12 schools, colleges, and universities, for purposes of facilitating distance learning or performing Essential Functions, provided that social distancing of six-feet per person is maintained.

Essential Businesses are directed to maximize the number of employees who work from home.  Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.

Residents are to employ the following social distancing and hygiene requirements, which have not changed from the previous order:

  • Maintain at least six-foot social distancing from individuals who are not part of the same household or living unit;
  • Frequently wash hands with soap and water for at least 20 seconds, or using hand sanitizer that is recognized by the Centers for Disease Control and Prevention as effective in combatting COVID-19;
  • Cover coughs and sneezes with a tissue or fabric or, if not possible, into the sleeve or elbow (but not into hands); and
  • Avoid all social interaction outside the household when sick with a fever or cough.

Notice of Social Distancing Protocol

Under the Order, all Essential Businesses, including educational institutions, shall prepare, post, and implement a Social Distancing Protocol at each of their facilities at which they are maintaining operations by no later than 11:59 p.m. on April 2, 2020.

The Social Distancing Protocol must be substantially in the form provided by the County (see attached) and must be provided to each employee performing work at the facility. In addition, the Protocol must be posted at or near the entrance of any relevant facility and must be easily viewable to the public and employees. Finally, Essential Businesses must post a sign at the entrance of the facility informing all employees to not enter if sick, maintain a six foot distance, cough and sneeze into one’s elbow, and refrain from any unnecessary physical contact. We have attached a model sign to this Legal Update for your use.

Child Care Facilities

The Order requires, “to the extent possible,” that childcare facilities operate under the following conditions:

  • Childcare must be carried out in stable groups of 12 or fewer (“stable” means that the same 12 or fewer children are in the same group each day).
  • Children shall not change from one group to another.
  • If more than one group of children is cared for at one facility, each group shall be in a separate room. Groups shall not mix with each other.
  • Childcare providers shall remain solely with one group of children.

Essential Government Functions

Each governmental entity must identify and designate appropriate employees, volunteers, or contractors to continue providing and carrying out any Essential Governmental Functions, including the hiring or retention of new employees or contractors to perform such functions.  Each governmental entity and its contractors must employ all necessary emergency protective measures to prevent, mitigate, respond to and recover from the COVID-19 pandemic, and all Essential Governmental Functions must be performed in compliance with social distancing and hygiene requirements, described above, to the greatest extent feasible.

Travel

People must use public transit only for purposes of performing Essential Activities or to travel to and from work to operate Essential Businesses or maintain Essential Governmental Functions.  The Order permits travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services.  People riding on public transit must comply with social distancing and hygiene requirements.  The Order allows travel into or out of the County to perform Essential Activities, to operate Essential Businesses, or maintain Essential Governmental Functions.  Hotels and short-term lodgings are permitted to rent to those involved in an Essential Business or an Essential Governmental Function to the degree the guest is engaged in such activities while lodging.

Construction

An Essential Business includes construction, but only:

1)   Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;

2)   Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so;

3)   Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed; and

4)   Plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the habitability, sanitation, and operation of residences and Essential Businesses, but not for cosmetic or other purposes.

Essential Business also includes: Projects immediately necessary to the maintenance, operation or repair of Essential Infrastructure. Essential Infrastructure is not defined but includes airports, utilities, roads, public transportation, mortuary services, and telecommunication services. It is important to note that in the County’s March 17, 2020 Order, “public works construction” was listed as an Essential Infrastructure project. In this Order, which supersedes the prior Order, Public Works Construction is now considered an “Essential Business” only if it is designated as an Essential Government Function by the lead government agency.

Reading the various provisions of the Order together, public works construction projects may only continue if the LEA makes written determination that the project is an Essential Governmental Function, or is necessary to ensure that a building is safe, sanitary, or habitable so that a district can continue to provide the Essential Functions of distance learning and/or providing food to students. Such a project may also only continue if the posting and compliance of required social distancing measures are followed.  Otherwise, the only work that can occur on a public works project is the construction necessary to ensure that the existing construction site that must be shut down is left in a safe and secure manner.

Making a determination whether a public works project should move forward as an Essential Governmental Function, or be shut down and delayed involves an analysis of a variety of factors, including: workers’ compensation and other liability issues; SB 117 payment issues; OSHA obligations; monitoring employees’ health; social distancing requirements; determining the location of where Essential Services are provided; and possible contract addenda. Accordingly, we strongly recommend that districts contact legal counsel for assistance with making these determinations.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] The Order can be found online at https://socoemergency.org/order-of-the-health-officer-of-the-county-of-sonoma/.

[2] See https://socoemergency.org/emergency/novel-coronavirus/coronavirus-cases/ for up to date Sonoma County coronavirus statistics.

Legal Update Memo No. 24-2020 – Protect Your Remote Meetings from “Zoombombing” (K-12)

Download pdf:24-2020 – Protect Your Remote Meetings from Zoombombing (DLM)

With the increased use of Zoom and other video conferencing software due to the need for social distancing, a new concern has arisen: “Zoombombing.”

What is Zoombombing?  It is a form of hacking where a participant in a meeting posts offensive and/or off topic material to disrupt the meeting, and it has occurred in on-line classes and public school board meetings.

With the Brown Act’s lightened restrictions on teleconferencing during the COVID-19 pandemic (see our Legal Update 18-2020) comes individuals who seek to exploit this as an opportunity to gain attention and troll the public.  At one recent district board meeting, hackers used the chat feature to make racist and anti-Semitic statements, took over the center screen and posted pornography, and threatened board members and their families before the meeting was eventually adjourned.  Others have reported racist and misogynistic takeovers of virtual classrooms, creating a hostile learning environment for students.

The problem stems from a feature on Zoom that the host may grant screen share access to other participants to share the screen.  Hosts can disable this by changing this in Profile Settings.  Other protections include disabling “Join Before Host” so people cannot cause trouble prior to the host’s arrival; enabling “Co-Host” so you can assign others to help moderate; disabling “File Transfer” so there is no digital virus sharing; and disabling “Allow Removed Participants to Rejoin” so barred attendees cannot return.

Employees and district boards using Zoom, which has become a new favorite meeting tool for many educators during the COVID-19 outbreak, need to be careful when planning meetings.  Prior to a meeting, the host(s) should double-check that the people who are attending the event are solely the people who are supposed to be there and confirm that the default settings are protected prior to the start of the meeting.  This is especially important for board meetings open to electronic participation by the public.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 15-2020(CC) – Protect Your Remote Meetings from “Zoombombing” (CCD)

Download pdf: 15-2020(CC) – Protect Your Remote Meetings from Zoombombing (DLM)

With the increased use of Zoom and other video conferencing software due to the need for social distancing, a new concern has arisen: “Zoombombing.”

What is Zoombombing?  It is a form of hacking where a participant in a meeting posts offensive and/or off topic material to disrupt the meeting, and it has occurred in on-line classes and public school board meetings.

With the Brown Act’s lightened restrictions on teleconferencing during the COVID-19 pandemic (see our Legal Update 11-2020(CC)) comes individuals who seek to exploit this as an opportunity to gain attention and troll the public.  At one recent district board meeting, hackers used the chat feature to make racist and anti-Semitic statements, took over the center screen and posted pornography, and threatened board members and their families before the meeting was eventually adjourned.  Others have reported racist and misogynistic takeovers of virtual classrooms, creating a hostile learning environment for students.

The problem stems from a feature on Zoom that the host may grant screen share access to other participants to share the screen.  Hosts can disable this by changing this in Profile Settings.  Other protections include disabling “Join Before Host” so people cannot cause trouble prior to the host’s arrival; enabling “Co-Host” so you can assign others to help moderate; disabling “File Transfer” so there is no digital virus sharing; and disabling “Allow Removed Participants to Rejoin” so barred attendees cannot return.

Employees and district boards using Zoom, which has become a new favorite meeting tool for many educators during the COVID-19 outbreak, need to be careful when planning meetings.  Prior to a meeting, the host(s) should double-check that the people who are attending the event are solely the people who are supposed to be there and confirm that the default settings are protected prior to the start of the meeting.  This is especially important for board meetings open to electronic participation by the public.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 14-2020(CC) – Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act (CCD)

Download pdf: 14-2020(CC) – Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act (NLK)

We plan to present our annual comprehensive workshop on Employee Health Leave Rights and Employer Responsibilities electronically in April and May.  This year, we will include coverage of the Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act.  As these new laws go into effect on April 1, 2020, and expire on December 31, 2020, below is an outline for your reference.  Please contact our office with any questions.

If you are interested in participating in the workshop, please visit our website at https://sclscal.org/workshops/ to register.

I. Emergency Family and Medical Leave Expansion Act (“Emergency FMLA”)

 A. Definitions 

1. “Eligible Employee” means “an employee who has been employed for at least 30 calendar days by the employer….

a. An employer may exclude an employee who is an emergency responder. (Families First Act sec. 3105)[1]

b. Although an employee does not have to meet the usual FMLA 1,250 service hour requirement or one year of employment requirement to be eligible for Emergency FMLA, the employee cannot have exhausted all FMLA rights in the applicable 12-month period.

2. “Employer” includes “any public agency.”

3. “Qualifying Need Related to a Public Health Emergency” (“Qualifying Need”) means an eligible employee is unable to work (or telework) due to a need to care for a son or daughter, under 18 years of age, whose:

a. School or place of care has been closed, or

b. Child care provider of son or daughter under 18 years of age is unavailable, because of an emergency declared by federal, state, or local authority with respect to COVID-19.

4. “Child Care Provider” means a provider who receives compensation for providing child care on a regular basis, including a center-based child care provider, group home child care provider, family child care provider, or other provider of child care services for compensation that is:

a. Licensed, regulated or registered under state law, and

b. Satisfies state and local requirements. (42 USC 9858n(6))

5. “School” means elementary or secondary school.

B. Emergency FMLA Leave –Duration/Commencement and Termination Date
1. Up to 12 workweeks of job-protected leave for a Qualifying Need.

2. Leave may commence on or after April 1, 2020, the effective date of the Families First Act.

3. Leave shall terminate on or before December 31, 2020

C. Emergency FMLA Leave – Compensation

1. First 10 days

The first 10 days of Emergency FMLA leave are unpaid, but the employee may use other available sources of paid leave, including:

a. Emergency Paid Sick Leave (See Part II, below)

b. Sick Leave – Education Code secs. 44978 and 87781 (certificated/academic EEs) and 45192 and 88192 (classified EEs), if permitted by applicable CBA or policy/regulation

c. Personal Necessity Leave

d. Vacation Leave

e. Compensatory time

2. After 10 Days

a. Paid Leave for Employees with Regular Work Schedules

Two-thirds of the employee’s regular rate of pay for the number of hours the employee would otherwise have been scheduled to work, but no more than $200/day and $10,000 in the aggregate.

b. Paid Leave for Employees with Varying Work Schedules

Two-thirds of the employee’s regular rate of pay for the average number of hours that the employee was scheduled per day over the six-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type, but no more than $200/day and $10,000 in the aggregate.

If the employee did not work during the preceding six-month period, two-thirds of the employee’s regular pay for the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work, but no more than $200/day and $10,000 in the aggregate.

D. Notice

Employee is required to give notice of need for Emergency FMLA as soon as practicable.

E. Restoration to Position

1. Employees who take Emergency FMLA leave are entitled to be reinstated to the same or equivalent position upon termination of the leave.

2. Exception

For employers with fewer than 25 employees, reinstatement is not required if the employee’s position no longer exists due to economic conditions or changes in operating conditions of the employer that:

a. Affect employment, and

b. Are caused by an emergency declared by federal, state, or local authority with respect to COVID-19.

Employer must make reasonable efforts to restore the employee to an equivalent position, and if such efforts fail, contact the employee if an equivalent position becomes available within one year of the earlier of the date on which the need for Emergency FMLA concludes, or the date that is 12-weeks after the date on which the employee’s Emergency FMLA began.

III. Emergency Paid Sick Leave Act (“PSL”)

A. Definitions

 1. “Employee” includes a public employee regardless of how long the employee has been employed.

2. “Covered Employer” includes a public agency.

 B. Qualifying Reasons for PSL

  1. Employee is subject to federal, state, or local quarantine order due to concerns related to COVID-19.
  1. Employee has been advised by a health care provider (“HCP”) to self-quarantine due to concerns related to COVID-19.
  1. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  1. Employee is caring for someone subject to a quarantine order (paragraph 1) or has been advised by an HCP to self-quarantine (paragraph 2).
  1. Employee is caring for employee’s son or daughter because the school or place of care or child care provider is unavailable due to COVID-19 precautions. (See Emergency FMLA, above, and C.5., below.)
  1. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

C. Duration of PSL and Rate of Pay 

  1. Full-time Employees – Leave for 80 hours at regular rate of pay. (See paragraphs C.4. and C.6.)
  1. Part-time Employees – Leave for the number of hours the employee works on average over a two-week period at the regular rate of pay. (See paragraphs C.4. and C.6.)
  1. Employees with Varying Schedules –Leave for the number of hours the employee was scheduled to work over the six-month period ending on the date the employee takes PSL, including hours the employee took leave of any type, at the regular rate of pay. (See paragraphs C.4. and C.6.)
  1. Exception to Rate of Pay

When the Qualifying Reason for leave is to care for a family member (paragraphs B.4. to B.6., above), the rate of pay is two-thirds the employee’s regular rate.

  1. Employees who take EPSL for the reasons specified in paragraph B.5., if eligible (i.e., employed at least calendar days), also have rights under Emergency FMLA).
  1. Maximum Compensation

a. $511/day; $5,110 in the aggregate for Qualifying Reasons in paragraphs B.1. to B.3., above.

b. $200/day; $2,000 in the aggregate for Qualifying Reasons in paragraphs B.4. to B.6., above.

D. Use of PSL First and Related Rights

  1. Employer may not require employee to use other paid leave before PSL.
  1. Employer may not require employee to find a substitute as a condition of taking PSL.
  1. Employer may not discharge, discipline, or in any manner discriminate against an employee who takes PSL in accordance with the Families First Act and has filed a complaint/instituted a proceeding under the Families First Act or is about to testify in such a proceeding.

E. Expiration of PSL Rights

PSL rights expire on December 31, 2020.

F. Notice Requirements 

  1. Employers are required to post a notice of the Emergency Paid Sick Leave Act (https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf) in a conspicuous place where notices to employees are customarily posted. 
  1. After the first PSL leave day, the employer may require an employee to “follow reasonable notice procedures….”

Please contact our office with questions regarding this Legal Update or any other legal matter.

 The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] U.S. Department of Labor may issue further guidance in this regard.

Legal Update Memo No. 23-2020 – Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act (K-12)

Download pdf: 23-2020 – Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act (NLK)

We plan to present our annual comprehensive workshop on Employee Health Leave Rights and Employer Responsibilities electronically in April and May.  This year, we will include coverage of the Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act.  As these new laws go into effect on April 1, 2020, and expire on December 31, 2020, below is an outline for your reference.  Please contact our office with any questions.

If you are interested in participating in the workshop, please visit our website at https://sclscal.org/workshops/ to register.

I. Emergency Family and Medical Leave Expansion Act (“Emergency FMLA”)

 A. Definitions 

1. “Eligible Employee” means “an employee who has been employed for at least 30 calendar days by the employer….

a. An employer may exclude an employee who is an emergency responder. (Families First Act sec. 3105)[1]

b. Although an employee does not have to meet the usual FMLA 1,250 service hour requirement or one year of employment requirement to be eligible for Emergency FMLA, the employee cannot have exhausted all FMLA rights in the applicable 12-month period.

2. “Employer” includes “any public agency.”

3. “Qualifying Need Related to a Public Health Emergency” (“Qualifying Need”) means an eligible employee is unable to work (or telework) due to a need to care for a son or daughter, under 18 years of age, whose:

a. School or place of care has been closed, or

b. Child care provider of son or daughter under 18 years of age is unavailable, because of an emergency declared by federal, state, or local authority with respect to COVID-19.

4. “Child Care Provider” means a provider who receives compensation for providing child care on a regular basis, including a center-based child care provider, group home child care provider, family child care provider, or other provider of child care services for compensation that is:

a. Licensed, regulated or registered under state law, and

b. Satisfies state and local requirements. (42 USC 9858n(6))

5. “School” means elementary or secondary school.

B. Emergency FMLA Leave –Duration/Commencement and Termination Date
1. Up to 12 workweeks of job-protected leave for a Qualifying Need.

2. Leave may commence on or after April 1, 2020, the effective date of the Families First Act.

3. Leave shall terminate on or before December 31, 2020

C. Emergency FMLA Leave – Compensation

1. First 10 days

The first 10 days of Emergency FMLA leave are unpaid, but the employee may use other available sources of paid leave, including:

a. Emergency Paid Sick Leave (See Part II, below)

b. Sick Leave – Education Code secs. 44978 and 87781 (certificated/academic EEs) and 45192 and 88192 (classified EEs), if permitted by applicable CBA or policy/regulation

c. Personal Necessity Leave

d. Vacation Leave

e. Compensatory time

2. After 10 Days

a. Paid Leave for Employees with Regular Work Schedules

Two-thirds of the employee’s regular rate of pay for the number of hours the employee would otherwise have been scheduled to work, but no more than $200/day and $10,000 in the aggregate.

b. Paid Leave for Employees with Varying Work Schedules

Two-thirds of the employee’s regular rate of pay for the average number of hours that the employee was scheduled per day over the six-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type, but no more than $200/day and $10,000 in the aggregate.

If the employee did not work during the preceding six-month period, two-thirds of the employee’s regular pay for the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work, but no more than $200/day and $10,000 in the aggregate.

D. Notice

Employee is required to give notice of need for Emergency FMLA as soon as practicable.

E. Restoration to Position

1. Employees who take Emergency FMLA leave are entitled to be reinstated to the same or equivalent position upon termination of the leave.

2. Exception

For employers with fewer than 25 employees, reinstatement is not required if the employee’s position no longer exists due to economic conditions or changes in operating conditions of the employer that:

a. Affect employment, and

b. Are caused by an emergency declared by federal, state, or local authority with respect to COVID-19.

Employer must make reasonable efforts to restore the employee to an equivalent position, and if such efforts fail, contact the employee if an equivalent position becomes available within one year of the earlier of the date on which the need for Emergency FMLA concludes, or the date that is 12-weeks after the date on which the employee’s Emergency FMLA began.

III. Emergency Paid Sick Leave Act (“PSL”)

A. Definitions

 1. “Employee” includes a public employee regardless of how long the employee has been employed.

2. “Covered Employer” includes a public agency.

 B. Qualifying Reasons for PSL

  1. Employee is subject to federal, state, or local quarantine order due to concerns related to COVID-19.
  1. Employee has been advised by a health care provider (“HCP”) to self-quarantine due to concerns related to COVID-19.
  1. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  1. Employee is caring for someone subject to a quarantine order (paragraph 1) or has been advised by an HCP to self-quarantine (paragraph 2).
  1. Employee is caring for employee’s son or daughter because the school or place of care or child care provider is unavailable due to COVID-19 precautions. (See Emergency FMLA, above, and C.5., below.)
  1. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

C. Duration of PSL and Rate of Pay 

  1. Full-time Employees – Leave for 80 hours at regular rate of pay. (See paragraphs C.4. and C.6.)
  1. Part-time Employees – Leave for the number of hours the employee works on average over a two-week period at the regular rate of pay. (See paragraphs C.4. and C.6.)
  1. Employees with Varying Schedules –Leave for the number of hours the employee was scheduled to work over the six-month period ending on the date the employee takes PSL, including hours the employee took leave of any type, at the regular rate of pay. (See paragraphs C.4. and C.6.)
  1. Exception to Rate of Pay

When the Qualifying Reason for leave is to care for a family member (paragraphs B.4. to B.6., above), the rate of pay is two-thirds the employee’s regular rate.

  1. Employees who take EPSL for the reasons specified in paragraph B.5., if eligible (i.e., employed at least calendar days), also have rights under Emergency FMLA).
  1. Maximum Compensation

a. $511/day; $5,110 in the aggregate for Qualifying Reasons in paragraphs B.1. to B.3., above.

b. $200/day; $2,000 in the aggregate for Qualifying Reasons in paragraphs B.4. to B.6., above.

D. Use of PSL First and Related Rights

  1. Employer may not require employee to use other paid leave before PSL.
  1. Employer may not require employee to find a substitute as a condition of taking PSL.
  1. Employer may not discharge, discipline, or in any manner discriminate against an employee who takes PSL in accordance with the Families First Act and has filed a complaint/instituted a proceeding under the Families First Act or is about to testify in such a proceeding.

E. Expiration of PSL Rights

PSL rights expire on December 31, 2020.

F. Notice Requirements 

  1. Employers are required to post a notice of the Emergency Paid Sick Leave Act (https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf) in a conspicuous place where notices to employees are customarily posted. 
  1. After the first PSL leave day, the employer may require an employee to “follow reasonable notice procedures….”

Please contact our office with questions regarding this Legal Update or any other legal matter.

 The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] U.S. Department of Labor may issue further guidance in this regard.

ADDENDUM to Legal Update Memo No. 19-2020: Federal Government Passes Families First Act (K-12)

Download pdf: 19-2020 Addendum – Federal Government Passes Families First Act (KAS-CDC…

We are providing this addendum to clarify application of the following provisions of the Families First Act (“FFA”) to public employers:

Family and Medical Leave

The expansion of Family and Medical Leave Act is applicable to public employers, regardless of number of employees. Note, however, that the expanded eligibility to employees who have been employed for at least 30 days and supplemental pay during leave are only applicable to the child care leave rights set forth in Legal Update 19-2020.

For all other requests for leave, normal FMLA rights and eligibility limitations apply, including the requirement that the district employ at least 50 persons. Therefore, some districts that have not previously had to comply with the FMLA may be required to do so for the express purpose of enacting this expansion.

Paid Sick Leave

Emergency Paid Sick Leave is applicable to any public employer with one or more employees.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 22-2020 – FAQ on Holding IEP Meetings Remotely (K-12)

Download pdf: 22-2020 – FAQ on Holding IEP Meetings Remotely (JEN)

Given the shelter-at-home orders, many of our clients have had questions regarding holding virtual IEP meetings.  This FAQ addresses the four most common questions.  We understand that convening IEP meetings for all of your students with disabilities will be challenging during school closures.  As circumstances can vary from district to district, please contact our office for advice as to your school district’s specific concerns.

  1. Does the IDEA permit schools to hold IEP meetings via telephone or video conference?

Yes.  The IDEA permits parents and districts, with agreement, to use an alternative means of participation to conduct IEP meetings or carry out other administrative matters.  Those alternative means could be video conferences or conference calls via telephone.  (34 C.F.R. §§ 300.322(c), 300.28)

During an emergency school closure, IEP teams are not required to meet in person, and accessible technology may be used to conduct IEP meetings or carry out other administrative matters.  (Fact Sheet: Addressing the Risk of COVID-19 in Schools while Protecting the Civil Rights of Students (OCR 3/16/20))

You should document efforts to provide alternative means for parents to participate in an IEP meeting.  (34 C.F.R. § 300.322(d))

  1. May schools deliver special education documents via email?

Yes.  The IDEA provides that parents may elect to receive prior written notices, procedural safeguards, and due process complaints by email, if that option is available.  (34 C.F.R. 300.505)  Additionally, the U.S. Department of Education has opined that schools may distribute IEP documents and progress reports via email if the parents are in agreement to such delivery and the emails are secure.  (Letter to Breton (OSEP 3/21/14); Analysis of Comments and Changes to the 2006 IDEA Part B Regulations, 71 Fed.Reg. 46,540 (2006))

  1. Does an electronic signature fulfill the requirements for informed parental consent under the IDEA and in California?

Yes.  When consent is required, it must be “fully informed” consent in order to be valid.  (20 U.S.C. § 1414(a)(1)(D); 34 C.F.R. § 300.9. Educ. Code § 56346)  A parent is considered to have consented if he/she is: 1) fully informed of all information relevant to the activity for which consent is sought, in his/her native language, or through another mode of communication; 2) understands and agrees in writing to the carrying out of the activity for which his/her consent is sought, and the consent describes the activity and lists the records (if any) that will be released and to whom; and 3) understands his/her related procedural safeguards.  (34 C.F.R. § 300.9)

California law provides for any person to use a digital signature in a written communication with a public entity, including a school district.  (Gov’t Code §§ 16.5, 811.2)  That digital signature has the same force and effect of a physical signature if it: 1) is unique to the person using it; 2) is capable of verification; 3) is under the sole control of the person using it; 4) is linked to data in such a manner that if the data are changed, the digital signature is invalidated; and 5) conforms to regulations adopted by the Secretary of State.  (Gov’t Code § 16.5)  A school cannot require a parent to use a digital signature.  (Gov’t Code § 16.5)  The application “DocuSign” meets these legal requirements.

Additionally, in comments to the regulations, the U.S. Department of Education provided that schools may use electronic or digital signatures for consent if they take steps to ensure the integrity of the process.  (Analysis of Comments and Changes to the 2006 IDEA Part B Regulations, 71 Fed.Reg. 46,629 (2006))

Based on the above, a digital signature would suffice as written consent to an IEP or IEP amendment.  During an emergency school closure, it may not be reasonable for you to obtain a parent’s physical signature on an IEP or IEP amendment to which you need consent.  You must ensure that the parent receives a copy of the document to which you are requesting consent, in his/her native language, and that the parent is otherwise fully informed in accordance with Federal and state law.

  1. Does written consent provided through email or text message fulfill the requirements for informed parental consent under the IDEA and in California?

Probably; however, this type of consent should be used as a last resort.  The Electronic Signatures in Global and National Commerce Act provides that most electronic agreements are enforceable as if they were paper documents.  (Pub. L. 106-229 (2000))  The Act does not specify an approved method of signing electronic agreements.  It defines “electronic signature” broadly to mean “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”  (15 U.S.C. § 7706)

Accordingly, based on this broad definition, if a school emails a copy of an IEP amendment to a parent and the parent responds that they consent to the attached IEP document, it is likely that the parent has provided the needed consent to implement that attached IEP.  If a school mails a copy of an IEP amendment to the parent, and the parent is only able to access text messaging to provide consent, you should ensure that it is clear to what document the parent is providing consent.  In both situations, you should ensure you maintain copies of the electronic consent.

In the event you rely on written consent provided through email or text message during school closures, you should obtain a parent’s actual signature on any IEP documents still being implemented once face-to-face meetings are resumed.

Moreover, once in-person instruction resumes, schools should return to obtaining written consent via written or digital signature.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2020 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

ADDENDUM to Legal Update Memo No. 12-2020(CC): Federal Government Passes Families First Act (CCD)

Download pdf: 12-2020(CC) Addendum – Federal Government Passes Families First Act (KAS-CDC)

We are providing this addendum to clarify application of the following provisions of the Families First Act (“FFA”) to public employers:

Family and Medical Leave

The expansion of Family and Medical Leave Act is applicable to public employers, regardless of number of employees. Note, however, that the expanded eligibility to employees who have been employed for at least 30 days and supplemental pay during leave are only applicable to the child care leave rights set forth in Legal Update 12-2020(CC).

For all other requests for leave, normal FMLA rights and eligibility limitations apply, including the requirement that the community college district employ at least 50 persons. Therefore, some districts that have not previously had to comply with the FMLA may be required to do so for the express purpose of enacting this expansion.

Paid Sick Leave

Emergency Paid Sick Leave is applicable to any public employer with one or more employees.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.