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.

Legal Update Memo No. 13-2020 – Executive Order N-33-20, Statewide Stay in Place (CCD)

Download pdf: 13-2020(CC) – Executive Order N-33-20, Statewide Stay in Placer (KAS-CDC…

On Thursday, March 19, 2020, Governor Newsom announced Executive Order N-33-20,[1] which set forth the State Public Health Officer’s “Stay at Home” Order, effective immediately.

Such Order, while similar to Shelter in Place Orders issued across the area, uses different criteria for determining whether a business may remain open. Nevertheless, there is no change in application to colleges, which are still exempt.

Educational institutions, including K-12 schools and higher education, remain exempt under this Order as a “critical infrastructure sector whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, economic security, public health or safety, or any combination thereof.”[2]

Therefore, colleges may continue to operate as necessary to continue to provide services as described within Executive Order N-26-20, and are not required to shut down due to the statewide Order.

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 text of the Executive Order may be found at: https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf

[2] See “Education Facilities Subsector” under “Government Facilities Sector,” definition available at: https://www.cisa.gov/government-facilities-sector

Legal Update Memo No. 12-2020 – Federal Government Passes Families First Act (CCD)

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

On March 18, 2020, the Senate passed H.R. 6201, which was signed by the President later that evening.[1] This bill, known as the Families First Act, provides emergency relief for the COVID-19 pandemic. Below, we have highlighted portions of the bill relevant to colleges:

Family and Medical Leave

The bill expands the Family and Medical Leave Act (29 U.S.C. § 2612(a)(1)) by adding new qualifying events, expanding the eligibility requirements for these events, and adding a paid leave provision.

Specifically, for eligible employees, up to 12 weeks of FMLA leave is now available if the “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

An eligible employee is one who works at an employer with less than 500 employees, and has been employed there for at least 30 calendar days. If eligible, after the first 10 days, which are unpaid, the employee must be provided 2/3 of their regular salary for the remainder of the protected leave.[2] Employees may elect to use their accrued leave time to receive pay during the first 10 days.

Please note that normally, FMLA leave runs concurrently with other leave rights, unless bargained to run consecutively. This Act has not been bargained. The most generous approach an employer can take would be to apply these new rights first and then move on to any rights available pursuant to the Education Code. California Family Rights Act and/or Government Code leave rights, if applicable, may run concurrently with this expanded leave.

Paid Sick Leave

The bill provides for “emergency paid sick leave” which provides for all full-time employees receiving 80 hours (total, prorated for part-time employees based on the total number of hours worked in a two week period) of leave which may be used if:

  1. “The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19,”
  2. “The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19,”
  3. “The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis,”
  4. “The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2),”[3]
  5. “The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions,” or
  6. “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

This leave is primary, and must be used prior to any other accrued leave for any of the above purposes. The U.S. Department of Labor will prepare a notification poster no later than March 25, 2020, which employers must post in a conspicuous place where notices to employees are customarily posted.

These provisions go into effect immediately. Colleges should immediately revise their practices to account for the additional leaves provided.

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 full text of the Act may be found at: https://www.congress.gov/bill/116th-congress/house-bill/6201/text

[2] For employees that work variable hours week to week, the employer must calculate the average number of hours the employee was scheduled per day over the previous 6-month period, including any leave time. If the employee did not work over that period, the employer must calculate “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.”

[3] Time spent caring for family members may be compensated at 2/3 the employee’s normal rate of pay. All other emergency paid sick leave must be paid at the employee’s usual compensation.

Legal Update Memo No. 21-2020 – Distance Learning – Establishing Offer of FAPE (K-12)

Download pdf: 21-2020 – Distance Learning – Establishing Offer of FAPE (JEN)

As you move to distance learning for your students, please follow the following general guidelines:

  1. Call the parent and discuss what their concerns are regarding access to distance learning, what supports they would find most useful, and what barriers exist to provision of services (ie, computer with video capabilities, internet).
    • If you have determined that you can provide the student’s services, but through telephonic or video conference, discuss that plan with the parents. Let them know that you will be sending an IEP amendment that covers what you have discussed for their review and consent.  For these students, send an IEP amendment with a prior written notice [see Model PWN – Change to Distance Learning – No IEP Meeting Needed].
  2. Hold IEP meetings for students whose services cannot be provided 100% through distance learning. IEP meetings can be held through video or phone conference.
    • At the IEP meeting, focus on:
  1. How can we support the student in making process on his/her IEP goals? What services can support that progress, and how are they provided?
  2. What supports and/or accommodations does the student need to access the general education distance learning program?
  1. At every IEP meeting, acknowledge that compensatory services might be needed, and that such need will be reviewed by looking at progress on IEP goals once in-person services can resume.
    • Some services cannot be provided through distance learning, such as PT and APE
    • The more the IEP team can individualize the services provided to the student’s needs within the constraints of the situation, the stronger the offer of FAPE will be. Try to think outside of the box, including using consult, 1:1 time, virtual services, etc.
  1. Reflect the offer of FAPE in the distance learning setting as follows:

Offer of FAPE during school closure due to COVID-19:

Distance Learning Curriculum (specify)

Accommodations/Modifications (specify)

Services (specify, including method of delivery)

 IEP team will remeet once in-school services recommence to determine if Student made expected progress on IEP goals during the school closures, and, if not, what compensatory education services are required to support expected goal progress.

  1. Obtain parent consent to the IEP amendment.
    1. If parent does not consent, discuss with parent whether they are refusing previously consented-to services, but provided through a different method (e.g., online therapy).  In the absence of parental consent, send home a prior written notice with what will be provided to the student during the school closure.

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. 20-2020 – Executive Order N-33-20, Statewide Stay in Place (K-12)

Download pdf: 20-2020 – Executive Order N-33-20, Statewide Stay in Place (KAS-CDC)

On Thursday, March 19, 2020, Governor Newsom announced Executive Order N-33-20,[1] which set forth the State Public Health Officer’s “Stay at Home” Order, effective immediately.

Such Order, while similar to Shelter in Place Orders issued across the area, uses different criteria for determining whether a business may remain open. Nevertheless, there is no change in application to schools, which are still exempt.

Educational institutions, including K-12 schools and higher education, remain exempt under this Order as a “critical infrastructure sector whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, economic security, public health or safety, or any combination thereof.”[2]

Therefore, schools may continue to operate as necessary to continue to provide services as described within Executive Order N-26-20, and are not required to shut down due to the statewide Order.

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 text of the Executive Order may be found at: https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf

[2] See “Education Facilities Subsector” under “Government Facilities Sector,” definition available at: https://www.cisa.gov/government-facilities-sector