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Coronavirus (COVID-19) Information and Resources for Schools

(Updated October 23, 2020)

The World Health Organization has deemed Coronavirus 2019 (COVID-19) to be a pandemic. As the situation continues to evolve and change, the WASB is compiling information of greatest pertinence to Wisconsin school districts.

WASB Legal Update Recorded Webinars
October 2020 Legal and Legislative Video Update

On Oct. 21, 2020, legal and legislative staff at the Wisconsin Association of School Boards gave members this timely update about questions they’re receiving about paid leave under the Family First Coronavirus Response Act (FFCRA), securing and maintaining staff during the pandemic, disclosing information on students or staff testing positive for COVID-19, etc. and provided a legislative update. Refer to the Q & A document.

[https://www.youtube.com/watch?v=9sHTbfFdKmk&feature=youtu.be]


September 2020 Legal and Legislative Video Update

On Sept. 16, 2020, legal and legislative staff at the Wisconsin Association of School Boards gave members this timely update about questions they’re receiving about paid leave, face coverings, disclosing positive COVID-19 test results, etc. and provided a legislative update. Refer to the Q & A document.

[https://www.youtube.com/watch?v=s_O67N-slMo&feature=youtu.be]


August 2020 Legal and Legislative Video Update

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

[https://youtu.be/Bipn2_fDYYI]


July 28 Webinar on Reopening Schools: Perspectives from WASB Insurance Plan Members (Part 2)

The webinar — held by the WASB and representatives from WASB Insurance Plan endorsed agencies USI Insurance (formerly Associated Benefits and Risk Consulting), M3 Insurance Solutions, Inc. and TRICOR Inc. — covered COVID-19 testing and symptom tracking in the workplace; COVID-related absences, employee rights and health insurance eligibility; and COVID-19’s impact on short-term and long-term disability insurance eligibility and benefits.

[https://youtu.be/SnhoPz7R-QQ]

July 22 Webinar on Reopening Schools: Perspectives from WASB Insurance Plan Members (Part 1)

This webinar — held by the WASB and representatives from WASB Insurance Plan endorsed agencies Gallagher, M3 Insurance Solutions, Inc. and TRICOR Inc. — covered liability issues around access to school facilities, school transportation, food service and other issues.

[https://youtu.be/cGG6De1lBX0]


June 10 Webinar on Responding to COVID-19: Safely Returning to Work

[https://youtu.be/UHdpLTDBWro]


 

 

Considerations for Reopening Schools and Child/Youth Programs
  • On June 22, the DPI released Education Forward, a guidance document for district and school leaders to use as they plan for a safe, efficient and equitable return to school for the 2020-21 school year amid the COVID-19 pandemic. The guidance document references the use of a Returning to School Committee and a Pandemic Response Committee when making local decisions about the safe return to school. School boards and administrators should consider, and review with the district’s legal counsel, the potential applicability of the Open Meetings Law to the meetings of such committees and subcommittees.

USE OF FACE COVERINGS – On 9/22/20, Gov. Evers issued a new emergency order (Emergency Order # 1) that requires all individuals in Wisconsin who are five years of age and older to wear a face covering when they are indoors or in an enclosed space with anyone outside their household living unit. This emergency order is in effect until 11/21/20, or until a subsequent superseding emergency order. Face coverings are also strongly recommended in all other settings, including outdoors when it is not possible to maintain physical distancing. The order also enumerates exceptions to the requirement, listing activities such as when an individual is eating, drinking or swimming. Individuals with health conditions or disabilities that would preclude the wearing of a face covering safely are also exempt from the requirement.

 

  • Refer to the June 2020 U.S. Government Accountability Office Report [GAO 20-294] addressing school district facility condition issues, needs and priorities. According to GAO’s national survey of school districts, about 41% of districts need to update or replace heating, ventilation, and air conditioning (HVAC) systems in at least half of their schools. If not addressed, HVAC issues can result in health and safety problems. School officials should keep in mind local school facility issues, needs and priorities (e.g., indoor air quality and ventilation) when making plans for reopening schools and making decisions regarding the use of school facilities during the COVID-19 pandemic.

 

 

 

Statewide Executive and Other Emergency Orders
  • On 9/22/20, Governor Tony Evers issued an executive order (Executive Order #90) proclaiming that a public health emergency, as defined by section 323.02(16) of the state statutes, exists in the State of Wisconsin. This public health emergency shall remain in effect 60 days, or until it is revoked by the Governor or by a joint resolution of the Wisconsin State Legislature. In the order, the Governor (1) designated the Department of Health Services as the lead agency to respond to the public health emergency and directed the DHS to take all necessary and appropriate measures to prevent and respond to COVID-19; (2) authorized the Adjutant General to activate the Wisconsin National Guard as necessary and appropriate to assist in the State’s response to the public health emergency, including providing personnel to support the November 3 election and personnel to operate community testing sites throughout Wisconsin; and, (3) directed all state agencies (which includes the Department of Public Instruction) to assist as appropriate in the State’s ongoing response to the public health emergency.
  • On 9/22/20, Gov. Evers issued an emergency order (Emergency Order # 1) that requires all individuals in Wisconsin who are five years of age and older to wear a face covering when they are indoors or in an enclosed space with anyone outside their household living unit. Face coverings are also strongly recommended in all other settings, including outdoors when it is not possible to maintain physical distancing.  The order also enumerates exceptions to the requirement, listing activities such as when an individual is eating, drinking, or swimming. Individuals with health conditions or disabilities that would preclude the wearing of a face covering safely are also exempt from the requirement. The emergency order is in effect until November 21, 2020, or until a subsequent superseding order. Refer to a frequently asked questions (FAQ) document for additional information on the implementation of this face covering emergency order.
  • Apart from the state-wide order regarding face coverings and any additional state-wide rules or orders that may be issued, the nature and scope of pandemic-related orders and restrictions (apart from the state-wide school closure provision) can vary by county and by municipality based on actions taken by local public health departments and other governmental authorities.
  • On October 6th, DHS Secretary-designee Andrea Palm issued an emergency order (Emergency Order # 3) prohibiting large groups of people from gathering in indoor spaces that are open to the public unless an exception applies. The order prohibits groups larger than 25% of the indoor room’s occupancy, as determined by the local municipality. K4-12 schools are specifically exempted from this emergency order, even if they have indoor spaces accessible to the public. Child care settings, before and after school programs, virtual learning support programs, and other child welfare locations are also exempted from the order. The emergency order goes into effect at 8 a.m. on October 8 and remains in effect for two incubation cycles of COVID-19 (two weeks per cycle), ending on November 6, 2020. Local governments may enact local orders that are the same or more restrictive than this order. Refer to a frequently asked questions (FAQ) document for additional information on the implementation of this emergency order.
  • In an emergency order issued on April 20, Gov. Evers announced the Badger Bounce Back plan that outlines the steps Wisconsin needs to take to decrease COVID-19 cases and deaths and increase capacity in Wisconsin’s healthcare system so that a phased reopening of businesses (including schools) is possible and people can get back to work. The plan was established to help the state reach the White House’s recommended guidelines for reopening the state.
Everyday Preventive Actions

Public health officials recommend individuals take Everyday Preventive Actions to help stop the spread of germs and prevent the spread of respiratory viruses, including:

  • Wash your hands often with soap and water for at least 20 seconds especially after you have been in a public place, or after blowing your nose, coughing or sneezing. If soap and water are not available, use a hand sanitizer that contains at least 60% alcohol. The CDC offers several free handwashing resources that include health promotion materials, information on proper handwashing technique and tips for families to help children develop good handwashing habits.
  • Avoid touching your eyes, nose and mouth with unwashed hands.
  • Put distance between yourself and others (6 feet or more). Remember that some people without symptoms may be able to spread virus. Do not gather in groups, stay out of crowded places and avoid mass gatherings.
  • Avoid close contact with people who are sick, even inside your home.
  • Stay home when you are sick.
  • If you are in a private setting and do not have a cloth face covering on, remember to always cover your nose and mouth with a tissue when you cough or sneeze or use the inside of your elbow. After using a tissue, throw it in the trash and wash your hands.
  • Clean and disinfect surfaces frequently touched surfaces daily. This includes tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets and sinks. The Wisconsin Department of Health Services is encouraging school districts to consult with their local or county public health department regarding the cleaning of schools in preparation for the summer and the eventual reopening of schools. On May 14, the CDC issued Reopening Guidance for Cleaning and Disinfecting Schools and Other Workplaces and Businesses.

 

USE OF FACE COVERINGS – On 9/22/20, Gov. Evers issued a new emergency order (Emergency Order # 1) that requires all individuals in Wisconsin who are five years of age and older to wear a face covering when they are indoors or in an enclosed space with anyone outside their household living unit. This emergency order is in effect until 11/21/20, or until a subsequent superseding emergency order. Face coverings are also strongly recommended in all other settings, including outdoors when it is not possible to maintain physical distancing. The order also enumerates exceptions to the requirement, listing activities such as when an individual is eating, drinking or swimming. Individuals with health conditions or disabilities that would preclude the wearing of a face covering safely are also exempt from the requirement.

Related School District Policies/Procedures/Plans

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

  • Refer to the April 2020 Policy Perspectives for information on the suspension/waiver of board policies during the COVID-19 pandemic.
  • Policies Addressing Employee Compensation During Extraordinary Circumstances – Districts paying staff compensation with federal grant funds or certain state categorical aid during the COVID-19 pandemic will need to incorporate language into their written district policies and procedures related to employee compensation during unexpected or extraordinary circumstances. According to the DPI, the cost is not an allowable cost unless it is consistent with the district’s policies and procedures for paying compensation from all funding sources, federal and non-federal, under unexpected or extraordinary circumstances. The DPI has drafted sample policy language to expedite the incorporation of such information into a district’s official policy. Subscribers to WASB’s Policy Resource Guide should look for this sample policy in the online PRG under the policy code 671.5.
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Continuity of Learning – General Information

School districts need to plan how they will provide students with options to continue learning during the period of school closure due to the coronavirus.

  • Refer to the May 2020 issue of WASB’s policy publication The FOCUS entitled “Providing Virtual Instruction: Some Special Considerations to Keep in Mind”  (requires log-in and is accessible only to FOCUS subscriber districts) The issue addresses a few of the special legal and other considerations and challenges that exist when school districts utilize a system of virtual instruction. Specifically, the issue addresses: (1) equity and access, (2) students with disabilities, (3) student privacy, (4) cybersecurity, and (5) copyright considerations for staff as they transition from face-to-face classroom lessons to virtual instruction.
  • Refer to the May 2020 Wisconsin Public Forum report addressing Wisconsin’s Digital Divide and its Impacts on Learning. This May 2020 report is intended to (1) broaden understanding of the number and characteristics of students in Wisconsin who lack reliable home internet access and (2) look at strategies implemented both in Wisconsin and elsewhere to help these students.
  • Council of Chief State School Officers Resources – Refer to CCSSO recommendations for remote learning. These recommendations have been vetted for quality and provide free high-quality instructional materials aligned to different types of remote learning from printed packets to virtual instruction. The CCSSO runs the High-Quality Instructional Materials and Professional Development Network that currently supports eight states, including Wisconsin.
  • Student Record Information and Privacy – Refer to U.S. Department of Education’s Student Privacy Policy Office FERPA and the Coronavirus Disease 2019 (COVID-19) Resources, which include FAQ’s and information related to virtual learning. Refer to the recording of the Student Privacy Policy Office’s March 30 webinar entitled “FERPA & Virtual Learning During COVID-19” which, among other things, addresses commonly asked questions related to the challenges of complying with student privacy laws like the Family Educational Rights and Privacy Act (FERPA) during this time and presents a series of scenarios which highlight privacy best practices and considerations when adopting distance learning approaches.
    • Refer to U.S. Department of Education’s 9/24/20 blog post for additional information on disclosure of information regarding COVID-19 cases in the school community.
  • Cybersecurity Recommendations for Students and Staff – Refer to recommendations from the U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency’s School Safety Team for using video conferencing tools and online platforms.
  • Wisconsin School Library Information – Refer to DPI’s COVID-19 information relevant to Wisconsin school libraries for information and resources related to such topics as student access to school library resources, cybersecurity and data privacy, copyright, Common School Fund Expenditures, circulation of library books and materials, and collaboration with public libraries.
    • State law provides that money generated by the Common School Fund be used for the purchase of library books and other instructional materials for school libraries and for the purchase of instructional materials from the State Historical Society for use in teaching Wisconsin history. However, in addition, a school district may use Common School Funds to purchase school library computers and related software if the school board consults with the person who supervises the school district’s libraries and the computers and software are housed in the school library. The DPI is encouraging school library media specialists to allocate Common School funds to allowable online resources, such as eBooks, audiobooks and research databases. The DPI has advised that if districts are unable to spend their 2019-20 Common School Fund allocation in full, the unspent portion should be coded as restricted fund balance (10 B 936130) and spent in 2020-21. These changes should be noted in the district’s long-range library plan.
Continuity of Learning – Equity and Access

COVID-19 is highlighting and widening educational inequities previously existing in our school system and disproportionately impacting some communities and groups of students. It is important for school districts to keep in mind equity and access issues when planning and providing for continuity of learning.  To help districts take an equitable approach to educational planning, the DPI has established specific questions that school leaders and educators should consider when planning to return to school. These questions can be found on DPI’s website.

Students with Disabilities

    • On 10/21/20, the U.S. DOE’S Office of Special Education and Rehabilitative Services issued a Q & A document to assist school districts in implementing the Individuals with Disabilities Education Act Part C provision of services in the current COVID-19 environment.

    • On 9/28/20, the U.S. DOE’S Office of Special Education and Rehabilitative Services issued a Q & A document to assist school districts in implementing the Individuals with Disabilities Education Act Part B provision of services in the current COVID-19 environment.
    • On 7/6/20, the U.S. DOE’S Office of Special Education and Rehabilitative Services issued a Q & A document to assist school districts in implementing the Individuals with Disabilities Education Act Part C evaluation and assessment timelines in the current COVID-19 environment.

    • On 6/22/20, the U.S. DOE’S Office of Special Education and Rehabilitative Services issued Q & A documents to assist school districts in implementing the Individuals with Disabilities Education Act Part B and Part C dispute resolution procedures in the current COVID-19 environment.

    • On 6/30/20, the U.S. DOE’S Office of Special Education and Rehabilitative Services issued Q & A documents to assist school districts in implementing the Individuals with Disabilities Education Act Part B and Part C procedural safeguards in the current COVID-19 environment.

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  • May 2020 WASB Legal Comment entitled “Compensatory Education Services for Students with Disabilities: The Continuing Consequences of COVID-19” (member log in required).

English Learners

Homeless Children and Youth

Continuity of Learning – State Law Waivers and Flexibility

The DPI has authority under section 118.38 of state statutes to grant waivers to school districts from many of the requirements found in Chapters 115 to 121 of the state statutes and in DPI’s administrative rules.

  • On September 11, the DPI updated the Regulatory Flexibility Framework for the 2020-21 school year to address additional topics of interest to school districts and additional possible waiver options. The framework consists of two parts: a COVID-19 flexibility application form and a series of policy provisions on key topics to address districts’ flexibility needs. The COVID-19 flexibility application provides a process for requesting multiple waivers from statutory and administrative rule requirements for the 2020-21 school year all at once in a simplified manner. It can be used at any time in the school year and is set up as a rolling application. Completing an application does not preclude a district from requesting waivers outside of the application process.
    • During the current pandemic, it is recognized that districts have the flexibility when needed to implement changes to how a program is delivered, how much of a program is delivered, and who delivers it. According to the DPI, temporary variations like this to planned school operations DO NOT need a waiver.
    • A waiver should be pursued only where a district anticipates or has determined it cannot offer a program or service required under the law during the 2020-21 school year. In addition, a waiver will be needed if a district does not anticipate being in compliance with a statutory requirement by virtue of the design of its plan of instruction. There will likely be few of these situations. Where this is the case, the district should complete a request for waiver from a particular statute and explain the circumstances that will require a formal waiver.
    • Districts can apply for flexibility on behalf of one, more than one, or all schools within their jurisdictional boundaries.
    • Districts can apply for flexibility on behalf of one, more than one, or all schools within their jurisdictional boundaries.
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    • Prior to requesting any state law waivers, school boards are reminded that they must first hold a public hearing, as per section 118.38(1)(b) of the state statutes. According to DPI guidance, such public hearings may be conducted virtually or by teleconference. The DPI also reminds districts to remain attentive to Open Meetings Law concerns, as further covered in guidance issued by the Wisconsin Department of Justice (see DOJ’s March 16 advisory and a related supplement issued on March 20).

 

    • School districts granted waivers to some state law requirements under section 118.38 of state statutes due to COVID-19 (e.g., instructional hour waivers and others outlined below) for the 2019-20 school year are reminded that those waivers were for “one year only,” according to the DPI. Due to statutory language in section 118.38 that states that waivers granted under that section are effective for four years, some districts may have assumed that an approved waiver would carry over to 2020-21, if needed. If a district determines that it needs any waivers of the applicable requirements for the 2020-21 school year, the district should pursue such waivers through separate requests and approvals as outlined above.

 

  • Student Attendance and Truancy – Student attendance must be recorded for in person, virtual, or remote instruction, according to the DPI. Standard attendance reporting practices and guidance apply when reporting student attendance for in-person instruction. When taking attendance in virtual (digital, analog, synchronous, asynchronous, or hybrid) instructional settings, there are multiple options. Examples of how to take attendance in virtual instruction settings may include: Learning Management System Records; evidence of daily work; submission or completion of assignment, module, exam; system log-in; weekly progress reports; attendance taken in synchronous event(s) – student is present during event and educator collects evidence that student accessed the event (if recorded); contact or activity logs; pacing charts or adequate course progress; daily check-in with student (virtual meeting, email connection, phone); regular weekly check-ins with parents/guardians.
  • Open Enrollment Virtual Instruction – Under state law, a student open enrolled into a nonresident school district has all of the rights and privileges of resident students. According to the Regulatory Flexibility Framework, if a school district offers a virtual instruction program in response to concerns under the current pandemic, either as one of several options or as the only option, the school district must offer the same program to open enrolled students.

 

  • Fire, Tornado and Safety Drills – Under state law, fire drills must be conducted at least once each month, tornado or other hazard drills twice per year, and school safety incident drills twice per year. According to the Regulatory Flexibility Framework, fire drills must be conducted at least once each month that the school is occupied with students. If there are concerns about having that many students in the hallways at one time, then drills may be conducted in phases so each classroom is eventually covered. If in-person classes are held, then drills must be conducted in accordance with the requirements. If all classes are virtual and there are no in-person classes, then drills do not have to be performed.
    • Refer to the 10/1/20 DOJ Office of School Safety Newsletter for information on conducting safety drills in a pandemic.
    • The reasons for not holding any required drills must be included in the annual fire and other drill report with the chief of the fire department, as required by law.
School Board Reporting Requirement
School boards are reminded that they are required by 2019 Wisconsin Act 185 (see also the WASB New Laws bulletin summarizing Act 185) to submit a report to the DPI by November 1 on virtual instruction and other school operations during the time that schools were closed during the 2019-20 school year due to the COVID-19 public health emergency. This report must include all of the following information:

  • Whether or not virtual instruction was implemented in the school district during the public health emergency and, if implemented, in which grades it was implemented.
  • If virtual instruction was implemented in the school district during the public health emergency, the process for implementing the virtual instruction.
  • For each grade level, the average percentage of the 2019−20 school year curriculum provided to students, including curriculum provided in−person and virtually.
  • Whether anything was provided to students during the 2020 summer to help students learn content that students missed because of the public health emergency and, if so, what was provided to students.
  • Recommendations for best practices for transitioning to and providing virtual instruction when schools are closed.
  • Any challenges or barriers the school board faced related to implementing virtual instruction during the public health emergency.
  • By position type, the number of staff members who were laid off during the public health emergency.
  • The number of lunches the school board provided during the public health emergency.
  • The total amount by which the school board reduced expenditures during, or because of, the public health emergency in each of the following categories: (a) utilities; (b) transportation; (c) food service; (d) personnel (This category includes expenditure reductions that result from layoffs.); and (e) contract terminations.

The DPI has developed a survey for school district staff to use to fulfill the mandatory reporting requirements outlined above. The survey questions can be previewed as a PDF or as a Word document. School districts are encouraged to preview the questions in the survey instrument prior to opening the survey for completion, so as to facilitate collection of the required information from district staff who have access to the data requested in the survey.

  • When reporting district financial data on the survey, school officials are encouraged to use the “Other” categories in Questions 17 and 18 on the survey to “tell the full story” on the financial impact of the COVID-19 pandemic on the district. For example, the “Other” category in Question 17 on the survey could be used to identify other expenditures to the district that are not specifically listed in Question 17 such as expenditures related to contract terminations, instructional materials and technology, legal services, consultant fees, etc. The “Other” category in Question 18 on the survey could be used to provide a narrative explanation on what is happening on the revenue side of the district’s budget for the 2020-21 school year. Change in district revenues and revenue authority is critical COVID-19 input which is not explicitly captured in the survey. The Wisconsin Association of School Business Officials (WASBO) is encouraging districts to use the “Other” category in Question 18 on the survey to report one combined dollar amount for COVID-19-related impacts on revenues, supported with detail, as follows: (1) change in per pupil categorical aid vs original budget expectation, (2) change in revenue limit authority vs original budget expectation, and (3) change in other local sources of revenue (gate receipts, student fees, etc.). To ensure uniformity of responses to Question 18, WASBO also encourages all districts to assume the financial impacts of the pandemic will continue for the entire school year (i.e., through June 30, 2021).
  • Additional information regarding the completion of the survey and the reporting requirements can be found on DPI’s website. According to the DPI, survey responses must be submitted into the survey web page. Please do not send survey responses directly to the DPI.

The DPI will be using the information from the school district reports to produce the required state report to the state Legislature by January 1, 2021.

For purposes of the above-required school board report, “virtual instruction” means instruction provided through means of the Internet if the students participating in and instructional staff providing the instruction are geographically remote from each other. “Public health emergency” means the period during the 2019-20 school year when schools were closed by the Department of Health Services, under section 252.02 (3) of the state statutes. The specific time frame was from March 12 through June 30, 2020.

Mental Health Support and Student Services
  • Collaborative for Academic, Social and Emotional Learning (CASEL) Coronavirus Resources, which include social and emotional learning resources for educators, parents and caregivers. CASEL has created a new CASEL Cares Initiative Webinar Series that is intended to help everyone – children, teachers, parents and other adults alike – attend to the social and emotional needs that arise during this challenging time dealing with the pandemic and the changes it is making in their lives. The webinars are being recorded and are available to access via CASEL’s website.
  • Refer to the Department of Health Services’ Resilient Wisconsin website for  practical tools and sources of support that can help everyone strengthen their resilience during times of stress so that they can take care of themselves and those around them during COVID-19 and beyond.

 

  • Resources of the Well Badger Resource Center – This resource center is a Wisconsin-based health information and referral service that is operated through a partnership with the Department of Health Services and helps to connect Wisconsin families and individuals with resources and services like WIC, BadgerCare Plus, and FoodShare. It also provides services and resources for children with special health care needs and children’s mental health.
  • Child Abuse and Neglect Reporting – During the COVID-19 pandemic, children are having fewer interactions with school employees and other professionals trained to observe and mandated to report suspected child abuse. Because of this, the Department of Children and Families believes it is critical now, more than ever, for everyone to be aware of the signs of child abuse and neglect and to know how to report those signs to local welfare agencies. School employees are also reminded of their child abuse and neglect reporting obligations under state law even during this public health emergency. School employees are required to make a report if they have reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected, or if they have reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur. The intentional failure to report as required may result in a fine, imprisonment or both.
Employee Compensation and Leave During the Pandemic

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

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

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

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

Paying Employee Compensation from Federal Grant Sources

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

Use of State Categorical Aids for Personnel Costs

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

Additional Resources:

  • The U.S. Department of Labor’s regulations for implementing paid leave under the Families First Coronavirus Response Act (On 9/16/20, clarifications and revisions were made to these regulations in response to a district court decision finding certain portions of the regulations invalid.)
  • The U.S. Department of Labor’s “Families First Coronavirus Response Act: Questions and Answers” (updated regularly)
    • On 8/27/20, information was added to the FFCRA Q&A addressing employee requests for paid leave when their child’s school is operating on an alternate day (or other hybrid-attendance) basis, when the employee has signed up for a remote learning alternative for their child in lieu of having their child attend school in person, or when their child’s school is beginning the school year under a remote learning program. Refer to questions #98, #99 and #100 in the Q&A for information related to these leave request situations.
Unemployment Compensation During the Pandemic

WASB attorneys have received a number of questions regarding unemployment compensation during the COVID-19 pandemic. The following is provided as general information and is not offered as legal advice.  WASB attorneys encourage any member board to refer inquiries about the application of law to any specific factual context to the school district’s legal counsel. If the support staff employee is told not to report to work and is not paid, the employee may be able to file for unemployment compensation since the employee doesn’t have reasonable assurance of a return to work date.  Refer to the Wisconsin Department of Workforce Development “Unemployment Compensation Guide” that addresses educational employees and reasonable assurance.

Additional Information and Resources:

  • Effective 11/2/20, all employers (including school districts) are required to provide each employee who separates from employment, for any reason, a new notice regarding the availability of unemployment insurance benefits. The new requirement was established in an Emergency Rule of the DWD. The notice is to be provided to the employee “immediately” at the time of separation. It can be provided by letter, email, text message, flyer/poster, or any other DWD-approved method. Simply adding the notice to the district’s employee handbook would NOT be sufficient
    • A sample notice and additional information about the new requirement can be found on the DWD’s website.
    • School districts may wish to add the following statement to the DWD’s suggested notice language: “Pursuant to Section DWD 120.02 of the Wisconsin Administrative Code, the School District is required to provide this notice regarding unemployment benefits to any employee who separates from employment for any reason. This notice is not a determination of your eligibility for unemployment insurance benefits. The Wisconsin Department of Workforce Development is responsible for making decisions regarding eligibility.”
  • 2019 Wisconsin Act 185 included a number of changes to the state’s unemployment insurance program for which school districts should be aware. Under Act 185, the one-week waiting period for the receipt of benefits is inapplicable to claimant benefit years that begin after March 12, 2020, and prior to February 7, 2021. Another significant temporary change to unemployment insurance concerns the extent to which regular benefits will be charged back to employers.
  • When processing initial claims for regular benefits payable for weeks beginning after March 12, 2020, and beginning before December 31, 2020, the DWD will determine whether a claim is related to the public health emergency declared on March 12, 2020, by executive order 72. If such a claim is determined to be related to the public health emergency, then the regular benefits paid for that claim shall, for all “reimbursable employers” (including school districts), be charged to the administrative account and paid from the appropriation established under state law.
  • In order to take maximum advantage of the Act 185 provisions that avoid charging the cost of regular benefits back to the school district as a reimbursable employer, each school district will want to ensure that, to the extent relevant to any claim, the district provides the information that establishes that the claim relates to the public health emergency. The DWD will likely provide additional information about this process in the near future, including the extent to which such a designation might be made retroactively.
  • On April 2, the U.S. Department of Labor issued new guidance (Unemployment Insurance Program Letter 14-20) outlining relevant provisions of the Coronavirus, Aid, Relief, and Economic Security (CARES) Act related to the administration of and eligibility criteria for state unemployment insurance programs, including Pandemic Unemployment Assistance for those not typically eligible for unemployment insurance, and expanded unemployment insurance benefits.
Fitness for Duty
  • On March 21, 2020, the EEOC updated previous guidance in response to the COVID-19 Pandemic, consistent with the Americans with Disabilities Act (ADA) and the Rehabilitation Act workplace protections and rules. The updated guidance includes the following introductory note:The EEOC is updating this 2009 publication to address its application to coronavirus disease 2019 (COVID-19).  Employers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of this disease and protect workers, customers, clients, and the general public.  The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace.
Telework
  • On August 24, the U.S. Department of Labor issued guidance (Field Assistance Bulletin No. 2020-5) regarding employers’ obligation under the Fair Labors Standards Act (FLSA) to track the number of hours  of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers. The FLSA generally requires employers to compensate their employees for all hours worked, including work not requested but “suffered or permitted”, including work performed at home. If an employer knows or has reason to believe that work is being performed, the employer must count the time as hours worked. The FLSA requires employers to exercise control to ensure that work is not performed that they do not want to be performed.
    • According to the DOL, one way an employer may exercise reasonable diligence in acquiring knowledge of additional unscheduled hours worked by their employees is to provide a reasonable reporting procedure for non-scheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee fails to report unscheduled work hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours. However, an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he/she has worked. An employee may not waive his/her rights to compensation under the FLSA.

 

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

Resources for Staff When Providing Virtual Instruction

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

 

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

 

School Finance
  • WASB Government Relations Staff’s memo entitled “Wisconsin’s Estimated Share and Permissible Use of Federal Funding Under the CARES Act”, which summarizes the allocation process and the permissible uses for Coronavirus Aid, Relief, and Economic Security (CARES) Act funding (issued April 2, 2020). School leaders should be aware that the CARES Act requires that public school districts receiving these funds must provide equitable service to non-public schools. School leaders should also be aware that the Act contains language that conditions the receipt of federal education stabilization funds by local educational agencies (e.g., school districts), states, institutions of higher education, or other entities, upon those entities continuing, to the greatest extent practicable, to pay employees and contractors during the period of any disruptions or closures related to the coronavirus.

  • DPI School Financial Services COVID-19 Updates, which include a frequently asked questions document regarding school finance and COVID-19 and an Elementary and Secondary School Emergency Relief (ESSER) FAQs document. School districts should check the FAQs frequently as they are continually updated as more information is available.

  • U.S. Department of Education Coronavirus Resources, which includes information and resources related to CARES Act Emergency Relief.

  • GASB 84 and GASB 87 are Postponed – The Governmental Accounting Standards Board (GASB) has postponed the effective dates of a few recently issued GASB Statements and Implementation Guides. In particular, GASB 84 (Fiduciary Funds) and its associated Implementation Guide are postponed to 2020-21. GASB 87 (Leases) and its Implementation Guide are postponed to 2021-22. The GASB encourages and permits early implementation of these statements, including GASB 84, but statements cannot be partially implemented. See this DPI web page for additional information.

  • DPI Provides Guidance on Federal Maintenance of Effort – According to this DPI web page, the existing local education agency “maintenance of effort” (MOE) requirements under the IDEA remain in place, and no additional exceptions have been added to address any shortfalls in expenditures due to the COVID-19 national emergency.
Insurance-Related Issues
  • Refer to the Federal Emergency Management Agency (FEMA) fact sheet entitled “Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures,” which outlines appropriate actions that are necessary to protect public health and safety and provides guidance on the types of emergency protective measures that may be eligible under FEMA’s Public Assistance Program, in accordance with the COVID-19 Emergency Declaration, in order to ensure that resource constraints do not inhibit efforts to respond to this unprecedented disaster.

 

  • September 2020 WASB Legal Comment entitled “Liability Waivers and the COVID-19 Pandemic”
Community/Family Engagement
  • Communications Tips
    When communicating with employees, students and families about Coronavirus, here are a few helpful key messages and tips to keep in mind:

     

    •  The priority is the health and safety of students and employees.
    • Schools work closely with public health officials and rely heavily on their guidance because they are the experts.
    • Local and state health departments are the best resources for current information about coronavirus.
    • Emphasize what is known at the time of the communication.
    • Include the date/time in all communications, including social media posts, because information can change quickly.
    • Include best hygiene practices in communications.
    • Create a web page that can be easily updated to links with the most current information from reliable sources, including the local and state health departments and the Centers for Disease Control.
    • The best way to combat rumors and speculation is easy access to reliable information.
Additional Resources

School officials should refer to Additional Resources to keep up-to-date on the coronavirus and related prevention and intervention activities.

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