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

Download pdf: 19-2020 – 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 schools:

School Nutrition

The bill amends the National School Lunch Act (42 U.S.C. § 1760, et seq.) to allow for the U.S. Department of Agriculture to grant waivers to States to allow schools to provide meals and meal supplements under any qualified NSL program. Waivers will be provided to allow for: (1) allowing a State to waive “any requirement” under the NSLA, or the Child Nutrition Act, or any regulation pursuant to those Acts, to provide meals during a school closure due to COVID-19; (2) allowing non-congregate provision of meals in accordance with COVID-19 safety measures, and (3) allow for meals to vary from meal pattern requirements if there is a disruption in the supply chain.

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. Districts 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. 18-2020 – Governor’s March 17, 2020 Executive Order N-29-20 Further Revising Teleconferencing of Board Meetings (K-12)

Download pdf: 18-2020 – Governor’s March 17, 2020 Executive Order N-29-20 Further Revising Teleconferencing of Board Meetings (JH)

On March 17, 2020, Governor Newsom issued Executive Order N-29-20, which further relaxed Brown Act rules regarding local legislative bodies, such as school boards, holding meetings via teleconference. (Posted online at: https://www.gov.ca.gov/wp-content/uploads/2020/03/3.17.20-N-29-20-EO.pdf ). It specifically revised and superseded paragraph 11 of his prior Executive Order N-25-20 of March 12, 2020, which allowed governing board members to attend board meetings by teleconference, provided that a physical location was available for public to attend.

As of March 17, 2020, the new teleconferencing rules set forth in the Executive Order N-29-20 allow all board members and staff to attend a district board meeting by telephone or teleconferencing, without requiring that the board make space available for the public to appear at any physical location, and without posting an agenda at each location from which a board member calls in, provided that:

  • The public may observe and address the meeting by telephone or other electronic means (e.g. Zoom, “telephonic call-in”, etc.);
  • The district includes in the meeting’s properly posted notice and agenda the procedure by which the public may observe the meeting and offer public comment; and
  • The district uses a procedure for receiving and swiftly resolving requests for disability accommodations or modifications.

Each state or local body must still give advance notice of each public meeting, according to the timeframe otherwise prescribed by the Brown Act, and using the means otherwise prescribed by the Brown Act, as applicable. Pre-existing Brown Act notice and agenda requirements, which still remain in effect, require 72 hours for a regular board meeting, 24 hours for a special board meeting, or less than 24 hours for an emergency board meeting. (For a summary of the special and emergency board meeting notice and agenda requirements, see our Legal Update 13-2020, sent on March 13, 2020).

The Executive Order urged all state and local governing bodies to “use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of … the Brown Act … in order to maximize transparency and provide the public access to their meetings.”

The Executive Order responds to an ever-changing landscape in which first counties, and now the state, have instituted a “shelter in place” order, yet public agencies must still hold meetings to perform their essential functions. We are aware of school districts that are planning to use internet streaming platform Zoom to allow its governing board members and staff to attend virtual board meetings. Please check with any teleconferencing or streaming platform you use to ensure that the public has call-in/log-in information that is separate from the board members’ and staff’s log in, which enables the public to observe the meeting and participate in public comment, without being allowed to interrupt board member presentation and discussion.

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. 11-2020 – Governor’s March 17, 2020 Executive Order N-29-20 Further Revising Teleconferencing of Board Meetings (CCD)

Download pdf: 11-2020(CC) – Governor’s March 17, 2020 Executive Order N-29-20 Further Revising Teleconferencing of Board Meetings (JH)

On March 17, 2020, Governor Newsom issued Executive Order N-29-20, which further relaxed Brown Act rules regarding local legislative bodies, such as school boards, holding meetings via teleconference. (Posted online at: https://www.gov.ca.gov/wp-content/uploads/2020/03/3.17.20-N-29-20-EO.pdf ). It specifically revised and superseded paragraph 11 of his prior Executive Order N-25-20 of March 12, 2020, which allowed governing board members to attend board meetings by teleconference, provided that a physical location was available for public to attend.

As of March 17, 2020, the new teleconferencing rules set forth in the Executive Order N-29-20 allow all board members and staff to attend a district board meeting by telephone or teleconferencing, without requiring that the board make space available for the public to appear at any physical location, and without posting an agenda at each location from which a board member calls in, provided that:

  • The public may observe and address the meeting by telephone or other electronic means (e.g. Zoom, “telephonic call-in”, etc.);
  • The district includes in the meeting’s properly posted notice and agenda the procedure by which the public may observe the meeting and offer public comment; and
  • The district uses a procedure for receiving and swiftly resolving requests for disability accommodations or modifications.

Each state or local body must still give advance notice of each public meeting, according to the timeframe otherwise prescribed by the Brown Act, and using the means otherwise prescribed by the Brown Act, as applicable. Pre-existing Brown Act notice and agenda requirements, which still remain in effect, require 72 hours for a regular board meeting, 24 hours for a special board meeting, or less than 24 hours for an emergency board meeting. (For a summary of the special and emergency board meeting notice and agenda requirements, see our Legal Update 07-2020(CC), sent on March 13, 2020).

The Executive Order urged all state and local governing bodies to “use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of … the Brown Act … in order to maximize transparency and provide the public access to their meetings.”

The Executive Order responds to an ever-changing landscape in which first counties, and now the state, have instituted a “shelter in place” order, yet public agencies must still hold meetings to perform their essential functions. We are aware of school districts that are planning to use internet streaming platform Zoom to allow its governing board members and staff to attend virtual board meetings. Please check with any teleconferencing or streaming platform you use to ensure that the public has call-in/log-in information that is separate from the board members’ and staff’s log in, which enables the public to observe the meeting and participate in public comment, without being allowed to interrupt board member presentation and discussion.

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. 10-2020 – Classified Employees – Notification of Reasonable Assurance of Employment for 2020-2021 (CCD)

Download pdf: 10-2020(CC) – Classified Employees-Notification of Reasonable Assurance (SPR)

*THIS IS AN IMPORTANT LEGAL UPDATE BUT IS NOT RELATED TO COVID-19

Classified Employees

In order for classified employees who do not work during the summer to be held ineligible for unemployment benefits, Unemployment Insurance Code Section 1253.3 requires that districts send these employees a “letter of reasonable assurance” no later than 30 days prior to the last day of the academic year or term.[1]  The Code requires very specific language.  The attached sample letters comply with Code requirements.

            Letter No. 1 is a sample letter for classified employees who work less than 12 months.

            Letter No. 2 is a sample letter for categorical, special, or federally-  funded classified employees who work less than 12 months.

            Letter No. 3 is a sample letter for classified substitutes to be used if the college district has a classified substitute list.

General

If an employee receives a letter of reasonable assurance and later files a claim for unemployment insurance with the Employment Development Department (“EDD”), the district will have to produce a copy of the letter of reasonable assurance that was given to that employee.  We recommend scanning or saving a copy of every letter of reasonable assurance given to each employee so it can later be produced to EDD if necessary.

Community College Districts should also be aware that if the economic terms and conditions of an employee’s work change significantly (more than 20% reduction in income) after the recess between academic terms, the notice of reasonable assurance does not bar the employee from collecting unemployment insurance. For instance, if the likely number of days a regular substitute is likely to work decreases by more than 20%, that substitute may be eligible for unemployment benefits for the summer.

California Supreme Court Decision

The California Supreme Court recently held that under Unemployment Insurance Code Section 1253.3, K-12 substitute teachers and other qualifying school employees may be eligible for unemployment benefits if they do not work during a district’s summer session, and, the summer session constitutes a “regular term.” As defined by the Court, a regular term occurs “if the summer session, as a whole, resembles the other academic terms of the school year in terms of enrollment, staffing, budget, instructional program, or other objective characteristics.”[2]

The Court clarified that “if a school district with conventional fall and spring semesters also offers a two-week summer session with limited offerings and limited enrollment, the summer session would not be a ‘regular’ term. By contrast, if a school district offers a summer session that resembles the fall and spring semesters in terms of enrollment, staffing, budget, and the instructional program offered, then the summer session would qualify as a ‘regular’ term.” Id.  While this ruling was directed at K-12 school districts, if a classified community college employee is not employed during the summer and files a claim for unemployment benefits with EDD, the districts should be prepared to provide EDD with data related to the difference in enrollment, staffing, budget, and instructional programs offered, between spring and summer programs to demonstrate that the summer session is not a “regular term” as outlined by the Supreme Court.

If you question whether your district’s summer session meets the Court’s description of a “regular term,” it is recommended that you issue the letter of reasonable assurance as a precaution.  

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] Unemployment Insurance Code Sec. 1253.3, subd. (h) refers to the “end of the academic year or term” not the last day of service for the employee.

[2] United Educators of San Francisco etc. v. California Unemployment Ins. Appeals Bd. (2020) 8 Cal.5th 805.

Legal Update Memo No. 17-2020 – Classified and Certificated Employees – Notification of Reasonable Assurance of Employment for 2019-2020 (K-12)

Download pdf: 17-2020 – Classified and Certificated Employees – Notification of Reasonable Assurance (SPR)

*THIS IS AN IMPORTANT LEGAL UPDATE BUT IS NOT RELATED TO COVID-19

Classified Employees

In order for classified employees who do not work during the summer to be held ineligible for unemployment benefits, Unemployment Insurance Code Section 1253.3 requires that districts send these employees a “letter of reasonable assurance” no later than 30 days prior to the last day of the academic year or term.[1]  The Code requires very specific language.  The attached sample letters comply with Code requirements.

            Letter No. 1 is a sample letter for classified employees who work less than 12 months.

 

            Letter No. 2 is a sample letter for categorical, special, or federally-  funded classified employees who work less than 12 months.

 

            Letter No. 3 is a sample letter for classified substitutes to be used if the district has a classified substitute list.

Certificated Employees

It is generally not necessary to send letters of reasonable assurance to regular certificated or administrative employees because they are defined as “professional” employees with either explicit or implied contracts that serve as a reasonable assurance of re-employment.

Substitute Teachers


Substitute teachers, particularly if they are on a list maintained by the district, do not have contracts and we recommend that they also be sent a letter of reasonable assurance no later than 30 days prior to the last day of school.  Each district should send letters to the substitutes on their substitute list and not rely on the county office of education to produce letters of reasonable assurance on its behalf.  If a county office of education also employs certificated substitutes for its own programs, those county offices of education should also send a notice of reasonable assurance to those substitutes.

            Letter No. 4 is a sample letter to be used for substitute teachers who are on a substitute list.

Schools Operating “Year-Round”

A recent California Supreme Court decision may impact districts with full-time year-round schools.  The Court held that under Unemployment Insurance Code Section 1253.3, substitute teachers and other qualifying school employees may be eligible for unemployment benefits if they do not work during a district’s summer session, and, the summer session constitutes a “regular term.” As defined by the Court, a regular term occurs “if the summer session, as a whole, resembles the other academic terms of the school year in terms of enrollment, staffing, budget, instructional program, or other objective characteristics.”[2]

The Court clarified that “if a school district with conventional fall and spring semesters also offers a two-week summer session with limited offerings and limited enrollment, the summer session would not be a ‘regular’ term. By contrast, if a school district offers a summer session that resembles the fall and spring semesters in terms of enrollment, staffing, budget, and the instructional program offered, then the summer session would qualify as a ‘regular’ term.” Id.  If challenged on these grounds, a district should be prepared to demonstrate that these factors differ for its spring vs. summer session.

If you question whether your district’s summer session meets the Court’s description of a “regular term,” it is recommended that you issue the letter of reasonable assurance as a precaution.

General

If an employee receives a letter of reasonable assurance and later files a claim for unemployment insurance with the Employment Development Department (“EDD”), the district will have to produce a copy of the letter of reasonable assurance that was given to that employee.  We recommend scanning or saving a copy of every letter of reasonable assurance given to each employee so it can later be produced to EDD if necessary.

Districts should also be aware that if the economic terms and conditions of an employee’s work change significantly (more than 20% reduction in income) after the recess between school terms, the notice of reasonable assurance does not bar the employee from collecting unemployment insurance.  For instance, if a summer layoff results in a reduction to a part-time position, the individual may be eligible for unemployment benefits.

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] Unemployment Insurance Code Sec. 1253.3, subd. (h) refers to the “end of the academic year or term” not the last day of service for the employee.

[2] United Educators of San Francisco etc. v. California Unemployment Ins. Appeals Bd. (2020) 8 Cal.5th 805.

Legal Update Memo No. 16-2020 – Guidance from California Department of Education (K-12)

Download pdf: 16-2020 – Guidance from California Department of Education (KAS-CDC)

California Department of Education (“CDE”) has issued new guidance to schools on the implementation of the following programs “when the school site is physically closed and the LEA has suspended onsite instruction:”

  1. Distance Learning
  2. Provision of Food to Students
  3. Student Supervision[1]

The guidance may be found at: https://www.cde.ca.gov/ls/he/hn/guidance.asp.

We strongly recommend all districts to review this guidance in detail, as it provides clarification on what CDE expects districts to provide as “high quality educational opportunities,” restrictions and guidelines around provision of meals to students, and clarification of the Governor’s requirement that schools provide student supervision.

Following the issuance of this guidance, CDE held a webinar to review the guidance and answer some of the many questions being asked during this time. The webinar was filmed and will be posted on the CDE website, however at the moment, districts may access a recording of the webinar on CDE’s Facebook page, at: https://www.facebook.com/CAEducation/videos/210082503433443.

Relevant information shared in the webinar is provided below, although we urge all districts with further questions to review the webinar and guidance documents in detail:

  • State Superintendent of Instruction Thurmond reiterated his commitment that no school district will lose funding during this time.
  • He also committed that the Governor and CDE will be announcing “shortly” that all state-mandated testing will be cancelled for the 2019-20 school year.

Distance Learning

  • CDE recommends that districts take attendance for any distance learning period.
  • CDE also noted that grading is not necessary during this period.

Food Services

  • CDE shared that the USDA is requiring it to collect and report information on school food programs during this time, in the areas of: location of distribution, number of meals distributed, times when meals are distributed, and the plan for distribution adopted by each school food program.
  • CDE noted that at this time, pursuant to federal guidelines, children must be present at the meal pickup.

Other Questions

  • Superintendent Thurmond reported that he is meeting with “academic” and “labor” leaders tomorrow to discuss collective bargaining-related issues.
  • CDE also noted that they are currently “in conversations” to determine how Government Code §§ 3100 et seq. (Disaster Service Workers and Public Employees Oath) apply, how much can be assigned through those provisions, and what their authority is under that Act.

We know many clients have expressed concerns about the four requirements for continued funding that were set forth in Executive Order N-26-20. Please note that pursuant to the CDE guidance, issued on March 17, 2020, “even if schools close temporarily because of COVID-19, LEAs will continue to receive state funding for those days….” Therefore, it appears that CDE is taking the position that funding is guaranteed, and districts should be attempting to provide the services described in the Executive Order, however they are not required to do so.

As this dynamic situation continues to evolve, our office will continue to provide districts with ongoing advice and support.

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] CDE has indicated that a FAQ related to the provision of special education services will be released “shortly.” If this is released our office will ensure it is circulated to districts.

 

Legal Update Memo No. 09-2020 – Shelter in Place Order (CCD)

Download pdf: 09-2020(CC) – Shelter in Place (KAS)

As of today, March 17, 2020, the Counties of Marin,[1] Alameda,[2] Contra Costa,[3] San Francisco,[4] San Mateo,[5] Santa Clara,[6] and Santa Cruz[7] have issued “Shelter in Place” orders. It is anticipated that Sonoma County will issue an order effective March 17, 2020 at midnight.

Although each order is unique, a “Shelter in Place” typically requires that:

  • Individuals residing within those counties remain within their residences, and maintain social distancing of at least six feet within outdoor spaces.
  • Individuals should only leave their homes for “Essential Activities, Essential Governmental Functions, or to operate Essential Businesses.”
  • All businesses, except Essential Businesses, are ordered to cease all activities at facilities within the affected county.
  • Essential Businesses and Essential Government are encouraged to remain open and to comply with social distancing.
  • All public and private gatherings are prohibited.
  • All travel, including non-motor vehicle travel, except Essential Travel and Essential Activities, is prohibited.

Each County will define individually what is “Essential” under the Order. “Essential Government Functions” is defined, in most orders, as “all services needed to ensure the continuing operation of the government agencies and provide for the health, safety and welfare of the public.” Most have included educational institutions within the definition of “Essential Businesses,” “for the purposes of facilitating distance learning or performing essential functions.” Such a definition would allow teachers and classified employees responsible for the operation of food service and cleanliness to continue to work.

Going forward, if your county is issued a “Shelter in Place” order, we recommend that your college read the applicable order to determine whether or to what extent schools are included within the definition of “Essential.” If the order permits colleges to continue to operate for “performing essential functions,” your college must make a determination as to what is an essential function, and maintain social distancing and sanitation practices for those employees who are present on the school site.

As a reminder, Districts may assign duties to all public employees, except legally employed aliens, pursuant to Government Code §§ 3100 et seq. as disaster service workers. Disaster service workers are meant to provide additional assistance for “the protection of the health and safety and preservation of the lives and property of the people of the state from the effects of natural, manmade, or war-caused emergencies which result in conditions of disaster or in extreme peril to life, property, and resources.” Government Code § 3100 states, “all public employees are hereby declared to be disaster service workers subject to such disaster service activities as may be assigned to them by their superiors or by law.” Such assignment of duties may be consistent or inconsistent with the employee’s typical job duties.

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://coronavirus.marinhhs.org/sites/default/files/Files/Shelter%20in%20Place/Shelter%20in%20Place%20Order%2016%20March%202020.pdf

[2] http://www.acgov.org/documents/Final-Order-to-Shelter-In-Place.pdf

[3] https://cchealth.org/emergencies/shelter-in-place.php

[4] https://www.sfdph.org/dph/alerts/files/HealthOrderC19-07-%20Shelter-in-Place.pdf

[5] https://www.smcgov.org/shelter-place-faqs

[6] https://www.sccgov.org/sites/phd/DiseaseInformation/novel-coronavirus/Pages/order-health-officer-031620.aspx

[7]https://www.santacruzhealth.org/Portals/7/Pdfs/Coronavirus/Shelter%20in%20Place%20Order%20March%2016%202020.pdf

Legal Update Memo No. 08-2020 – COVID-19 Updates (CCD)

Download pdf: 08-2020(CC) – COVID-19 Updates w attachment (KAS)

In this time of continuing change, we are providing community colleges with an update on the impact of COVID-19. We have provided a Frequently Asked Question (“FAQ”) document with this Update, which provides answers to many common questions surrounding COVID-19’s impact on public school employment.

On March 16, 2020 the Governor issued an Executive Order providing relief and direction to K-12 schools. This Executive Order and subsequent clarifying legislation does not apply to community college districts. However, on March 16, 2020, the Chancellor’s Office issued an update on COVID-19 with helpful resources for community colleges.[1]

Importantly, the Chancellor’s Office has issued the following recommendations for all community colleges:

  • Substantially limit all in-person interaction on campuses through June.
  • Continue to move instruction to remote learning platforms.
  • Consider reconfiguring all commencement ceremonies and pinning ceremonies to limit event size or move to a virtual format.
  • Cancel, postpone or move to a remote format all events, large meetings or conferences for the remainder of the year. This includes moving public board meetings to a remote format.
  • Institute remote work protocols for eligible employees in consultation with local bargaining units.
  • Consider the strong possibility of a slowdown in the state’s economy as you review on-going expenditures.

If your college has not yet submitted an application for an Emergency Distance Education Blanket Addendum, you are strongly encouraged to submit one at this time.[2] These applications can be submitted pre-emptively, if you wish to continue to maintain face-to-face instruction in the immediate future.

The Chancellor’s Office is providing webinars and resources for colleges transitioning to remote learning.

Finally, the Chancellor’s Office has requested that all colleges cancel their financial aid outreach for the remainder of the spring term. There will be no penalty assessed for failing to hold these events.

 

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] Available at: https://www.cccco.edu/-/media/CCCCO-Website/Files/Communications/COVID-19/covid-19-special-udpate-email-march162020.pdf?la=en&hash=1953B041995085639932C0E0BB20A1912CC065FA/

[2] Information on submitting this application can be found here: https://www.cccco.edu/-/media/CCCCO-Website/Files/Communications/COVID-19/es-20-07-emergency-temporary-distance-education-blanket-addendum.pdf?la=en&hash=4946BCE7223A165C44EEF194EDAF5929EF3E3FC7

Legal Update Memo No. 15-2020 – Shelter in Place Order (K-12)

Download pdf: 15-2020 – Shelter in Place (KAS)

As of today, March 17, 2020, the Counties of Marin,[1] Alameda,[2] Contra Costa,[3] San Francisco,[4] San Mateo,[5] Santa Clara,[6] and Santa Cruz[7] have issued “Shelter in Place” orders. It is anticipated that Sonoma County will issue an order effective March 17, 2020 at midnight.

 Although each order is unique, a “Shelter in Place” typically requires that:

  • Individuals residing within those counties remain within their residences, and maintain social distancing of at least six feet within outdoor spaces.
  • Individuals should only leave their homes for “Essential Activities, Essential Governmental Functions, or to operate Essential Businesses.”
  • All businesses, except Essential Businesses, are ordered to cease all activities at facilities within the affected county.
  • Essential Businesses and Essential Government are encouraged to remain open and to comply with social distancing.
  • All public and private gatherings are prohibited.
  • All travel, including non-motor vehicle travel, except Essential Travel and Essential Activities, is prohibited.

Each County will define individually what is “Essential” under the Order. “Essential Government Functions” is defined, in most orders, as “all services

needed to ensure the continuing operation of the government agencies and provide for the health, safety and welfare of the public.” Most have included schools and other educational institutions within the definition of “Essential Businesses,” “for the purposes of facilitating distance learning or performing essential functions.” Such a definition would allow teachers and classified employees responsible for the operation of food service and cleanliness to continue to work. Examples of employees who would not be permitted to work are: paraprofessionals, instructional aides, library teachers, library aides, and/or bus drivers.

Going forward, if your county is issued a “Shelter in Place” order, we recommend that your district read the applicable order to determine whether or to what extent schools are included within the definition of “Essential.” If the order permits schools to continue to operate for “performing essential functions,” your district must make a determination as to what is an essential function, and maintain social distancing and sanitation practices for those employees who are present on the school site.

 

As a reminder, Districts may assign duties to all public employees, except legally employed aliens, pursuant to Government Code §§ 3100 et seq. as disaster service workers. Disaster service workers are meant to provide additional assistance for “the protection of the health and safety and preservation of the lives and property of the people of the state from the effects of natural, manmade, or war-caused emergencies which result in conditions of disaster or in extreme peril to life, property, and resources.” Government Code § 3100 states, “all public employees are hereby declared to be disaster service workers subject to such disaster service activities as may be assigned to them by their superiors or by law.” Such assignment of duties may be consistent or inconsistent with the employee’s typical job duties.

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://coronavirus.marinhhs.org/sites/default/files/Files/Shelter%20in%20Place/Shelter%20in%20Place%20Order%2016%20March%202020.pdf

[2] http://www.acgov.org/documents/Final-Order-to-Shelter-In-Place.pdf

[3] https://cchealth.org/emergencies/shelter-in-place.php

[4] https://www.sfdph.org/dph/alerts/files/HealthOrderC19-07-%20Shelter-in-Place.pdf

[5] https://www.smcgov.org/shelter-place-faqs

[6] https://www.sccgov.org/sites/phd/DiseaseInformation/novel-coronavirus/Pages/order-health-officer-031620.aspx

[7]https://www.santacruzhealth.org/Portals/7/Pdfs/Coronavirus/Shelter%20in%20Place%20Order%20March%2016%202020.pdf

ADDENDUM to Legal Update Memo No. 14-2020 – Governor Executive Order N-26-20 and Related Issues (K-12)

Download pdf: 14-2020 – Governor Executive Order N-26-20 and Related Issues w attach (CDC-KAS)

This version has been updated to include information related to Senate Bills 117 and 89. Please discard the previous version, distributed March 16, 2020. New/revised information from the previous Legal Update is in italics to assist the reader.

 

After 5:00 p.m. on Friday March 13, 2020, the Governor issued Executive Order N-26-20[1], which addresses Local Educational Agencies (“LEAs”)[2] and responding to COVID-19 issues.  The purpose of this Legal Update is to summarize the Governor’s Executive Order and subsequent clarifying legislation, and to address various other COVID-19 issues in a Frequently Asked Question (“FAQ”) format.  Our office will continue to provide legal guidance through Legal Updates during the ongoing situation.

 

In summary, the Governor provided that if schools close temporarily because of COVID-19, to maintain funding, school districts must:

 

  1. Continue delivering high-quality educational opportunities to students through other options, distance learning and independent study;
  2. Safely provide school meals through the Summer Food Service Program and Seamless Summer Option, consistent with the requirements of the California Department of Education and U.S. Department of Agriculture;
  3. To the extent practicable, arrange for supervision for students during ordinary school hours; and
  4. Continue to pay employees.

 

The Governor acknowledged through this Executive Order that the decision to close an LEA is a local decision, and does not mandate that schools close.

 

The Executive Order also clarified that effective immediately, “the LEA is not prohibited from offering distance learning or independent study to impacted students. To the extent any state or local law might have been interpreted to the contrary, that law is waived.”

 

Districts are encouraged to consider whether the provision of distance learning and/or independent study meets the needs of their students during this time. In considering this, we remind Districts to view the decision through a lens of equity of access and whether they can provide a free and appropriate education for special education students.

 

The Executive Order also waives the 175-school day mandate set forth in Education Code Section 41422, so long as LEAs comply with the requirements to maintain funding, set forth above.[3]  In addition, Senate Bill 117 waived all instructional minutes requirements.

 

Finally, as a reminder, Superintendents and other Chief School Officials have the inherent authority pursuant to the Education Code to close a school in the event of an emergency, as discussed in Legal Update 10-2020, “Quarantine and Issues Related to COVID-19.”[4] There is no requirement that a Governing Board first provide authority. Nevertheless, LEAs may choose to have their Governing Boards adopt a resolution acknowledging this inherent authority or ratifying the decision of the Superintendent of Schools. We have included as an attachment with this Legal Update a model resolution that your LEA may adopt providing such.

 

Many County Health Officials are recommending a closure of at least 2 weeks, beginning immediately. We recommend that LEAs review their plans and consider the ongoing impact of such closures on their students and staff prior to making any decisions. Our office is fully staffed and available for you during this time.

 

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.gov.ca.gov/wp-content/uploads/2020/03/3.13.20-EO-N-26-20-Schools.pdf.

[2] LEAs include school districts, county offices of education, and charter schools.

[3] Please see the attached “FAQ” for further clarification on the availability of the J-13A waiver.

[4] In addition to the Education Code, LEAs may have adopted CSBA model policy 3516.5 which additionally states the authority of the Superintendent to close schools.