As we look to the upcoming fall semester and prepare for the future of education, what best practices must schools now adopt to comply with new laws and regulations that are developing to protect educators, employees and students from the perils imposed by COVID-19?

In the past months, our educational system has been forced to recreate itself to meet its mission to educate students in a safe environment. During this recent pandemic crisis, the focus has been recently directed to complications arising from an inflammatory syndrome in children that appears to be associated with COVID-19. There is a lack of information with regard to a child's role as a carrier of the disease. Promises of a vaccine are just that, without any concrete assurances. The pandemic has shown that educators cannot rely on our classrooms as the sole source of regularity and creativity in the education process. Group activities, as we have known them, including physical education, theater, musical performance, and labs have been effectively disabled for the indefinite future. There is a huge disparity among states and localities regarding best practices and operations.

The Centers for Disease Control and Prevention (CDC) issued guidelines on this topic, which were most recently updated on May 20. This document sets forth several best practices with the goal of reducing the spread of the disease. Some of those highlighted include practical and hopeful solutions for educators as they return to the classroom.

A bedrock of the CDC guidance for schools is training. Educators must train administration, staff and faculty, students, parents and caregivers that home is the best place when not feeling well. All too often parents and guardians send sick children to school, or employees have symptoms of ill health but choose to report to school. Policies must be developed to ensure those with symptoms of illness stay home without fear of reprisal. This necessity is particularly acute when someone has been diagnosed with COVID-19 or been exposed to someone with the illness. School posters will also aid in this goal.

Additional training should address hygiene and cleanliness throughout the school and at home. Continued emphasis on frequent and thorough handwashing for a minimum of 20 seconds is imperative. Hand sanitizer, tissues and waste receptacles for those tissues must be readily available throughout the school and educational spaces, and their use and proper disposal must be encouraged. Face coverings such as cloth masks or similar protective gear must be mandatory for all students over the age of 2 unless they have a medical condition prohibiting their use. Sharing of supplies or other objects should be discouraged.

Facility cleanliness and disinfection will also be a preeminent consideration. Proper ventilation is required. All surfaces must be cleaned daily or between uses. Shared books, toys or other objects should be discouraged. Cleaning should be scheduled and monitored at all times and with suitable cleaning agents stored securely away from the children at all times. Water fountains may be a significant source of infection, so students, faculty, staff and visitors should be encouraged, to the allowable extent, to bring their own source of hydration in a contained and cleaned bottle. Every effort should be made to keep all individuals six feet apart, which may result in diminished class size and facility use. Field trips must be analyzed and anticipated in detail if utilized. A better practice is to conduct virtual field trips in controlled settings. Sports will present their own unique challenges including keeping players, families, coaches and communities safe. Food service and meals brought from home should be monitored to ensure safe conditions. Because classroom size and schedules will be impacted by various regulations and proclamations, flexible attendance policies and staggered attendance may also present opportunities to ensure safety and legal compliance in schools.

What are some actions that will help achieve these priorities?

• Build a team (including school administrators, health care providers and consultants) focused on ensuring that the school has adequate internal and external resources to create and maintain the best possible environment and processes. This team must be trusted with significant authority to make safe decisions and carry them out. They should be charged with promulgating effective policies, and should have authority to respond to breaches in their policies.
• Analyze class size, scheduling and school layouts to comply with applicable laws and proclamations.
• Analyze the effects and impacts of the changes in education operations resulting from the changes imposed due to the spring 2020 pandemic.
• Develop flexible attendance policies that allow both students and faculty the freedom to stay home for the protection of all.
• Develop procedures to isolate those who are symptomatic at school, and provide transportation away from the facility.
• Develop policies and procedures to ensure cleanliness and optimal hygiene throughout the school.
• Develop procedures for working with local, state and federal authorities when necessary.
• Designate a school spokesperson should inquiries be made or communications needed.
• Create a policy to ensure legal compliance and litigation avoidance associated with health conditions in the school.
• Review and update emergency operations plans to ensure they address infectious disease outbreaks as well as everyday best practices.
• Create an alternative learning program rather than disciplinary measures should absences pose challenges to continued operations.
• Analyze and implement policies and procedures in accordance with the Americans with Disabilities Act, the Rehabilitation Act, the Family Medical Leave Act, Occupational Health and Safety Act, National Labor Relations Act and other applicable laws for the education arena to ensure legal compliance in employment and student engagement.
• Create a planned initiative to address children with emotional and academic problems arising from the pandemic and its effects.
• Determine monitoring protocols if necessary.
• Analyze employee retention and implement strategies to avoid damaging turnover, encourage return to work and restore student engagement.
• Implement strategic financial practices to offset revenue declines and increased costs.
• Develop programs aimed at teaching students the correct safety protocols in a positive and creative environment that encourages compliance.
• Develop a comprehensive training plan to accomplish all of the above priorities and goals.
• Constantly monitoring and follow up—this will be critical going forward.

Returning to school will also present a host of employment law issues. For example, the CDC has recently announced that antibody testing should not be used to make decisions about returning employees to school premises. However, the Equal Opportunity Employment Commission has stated that it is permissible to require returning employees to undergo COVID-19 diagnostic tests and temperature checks. In any case, employers must follow the required legal parameters of privacy and confidentiality. Tests must be in a private space not allowing observation, and records of these tests must be maintained in confidential employee medical records files separate and apart from personnel or human resources files. Care should also be taken to ensure those employees diagnosed with or associated with others diagnosed with the disease are not considered as or regarded as disabled, as protected by the Americans With Disabilities Act.

Other issues arise when employees refuse to return to work due to worries about potential exposure. OSHA, for example, allows an employee to refuse to report to work where there is an imminent danger as defined in the act. No court has yet to conclude that returning to work after the COVID-19 pandemic poses such an imminent danger. If such a judicial finding did occur, employers would not have to pay their employees when they fail to report to work (absent the two-week paid leave available to certain employees under the Families First legislation if a health care professional advises them to self-quarantine). There is also an argument that the National Labor Relations Act may be relevant when employees engage in a protected concerted activity where there are complaints regarding the terms and conditions of employment associated with the disease. These rules apply to both unionized and non-unionized employers. Ultimately, the issue of refusal to return to work is a complicated question affected by several laws and it would be wise to secure legal counsel to review the particular facts at hand.

Returning to school in fall 2020 will be challenging. With careful planning and forecasting, schools will have to affect the structure needed to focus on rehoming their students to an environment where they can learn and prosper safely.

Magdalen Blessey Bickford, a member in McGlinchey Stafford's New Orleans office, advises employers on best practices in the workplace and on drafting and implementing effective policies and procedures, and represents businesses and management in labor and employment litigation.

Katherine Conklin, a member of the firm's New Orleans office, is a board-certified specialist in tax and estate planning. She advises employers nationwide on employment law compliance and employee benefits matters.