COVID-19 FAQ

Can schools provide child care at off-campus locations such as community centers or churches? (Revised Nov. 20)

On Aug. 14, the Oregon Early Learning Division issued new guidance for having a center-based child care facility. Currently, the Oregon Early Learning Division website explains that temporary child care facilities (“pop-ups”) may only apply to operate Emergency Child Care if “they can demonstrate a community need." As such, the school and off-campus facility would need to demonstrate a community need and get approval by the Office of Child Care to operate an Emergency Child Care Facility.

Additionally, OHA has issued guidance for child care providers that would need to be followed.

OSBA also recommends schools require parents to complete our standard waiver as to school-sponsored child care services and the addendum our office developed specifically in response to the COVID-19 pandemic.

If you plan to have school-sponsored child care activities in religious facilities, public schools must be mindful that its activities do not endorse or provide benefit to any one religion, or religion over non-religion. At a minimum, make sure you are taking steps to cover or remove religious symbols from the space where the school-sponsored activity is taking place. This may include holding the child care services in as neutral a section of the facilities as possible. Consulting with legal counsel is also advised.

Can a school district open a day care facility on school grounds? (Revised Nov. 20)

Governor Brown’s Executive Order 20-29 requires public school functions other than in-person instruction (including but not limited to child care, youth camps, and athletics) to comply with guidance issued by OHA, ODE, as well as “with directives and guidance regarding gathering sizes and physical distancing.”

For use of school facilities by an outside group, ODE’s guidance explains:

School districts will still need to assure that all OHA and CDC guidelines around physical distancing and other public health protocols and all other federal, state, and local agency requirements, including any additional guidance released by the Oregon Department of Education or the Oregon Health Authority are followed.

Under this guidance, school districts can allow child care activities to happen on school grounds by outside providers if all ODE, OHA, and CDC guidance will be followed regarding physical distancing, protective wear, cleaning/sanitizing, etc., related to the activity. For example, OHA has issued guidance for child care providers that would need to be followed. For on-campus activities sponsored by outside groups, you should have the organization sign this facilities use COVID-19 addendum. This form should be used in conjunction with your standard facilities use agreement forms.

The Oregon Early Learning Division issued guidance for having a center-based child care facility. Currently, the Oregon Early Learning Division website explains that temporary child care facilities (“pop-ups”) may only apply to operate Emergency Child Care if “they can demonstrate a community need." As such, the school and off-campus facility would need to demonstrate a community need and get approval by the Office of Child Care to operate an Emergency Child Care Facility. As such, the school would need to demonstrate a community need and get approval by the Office of Child Care to be an Emergency Child Care Facility.

Finally, if a district is giving a discount only available to employees or only offering child care to employees and it is not part of their compensation, then there may be potential ethics issue. If the district is charging a market rate for the child care and making it available to the community then it would not be considered a benefit or taxable income or have any ethics issues.   

Are schools obligated to enforce the governor’s 14-day travel quarantine recommendation with respect to staff? (Nov. 19)

No. Schools are not obligated to require employees to quarantine for 14 days. While the Oregon Department of Education has issued guidance reiterating the governor’s request that “individuals should quarantine for two weeks upon return to the state,” Executive Order No. 20-65 does not address the travel advisory or impose any requirement that schools enforce the 14-day travel quarantine recommendation.

If an employee chooses to self-quarantine for 14 days following travel, the employee may use any leave that would qualify for this purpose. If the employee does not have any qualifying paid leave available, the school may consider allowing the employee to use unpaid leave or telework. While schools are not obligated to do so, if the school wants to require employees to self-quarantine for 14 days following travel, we strongly encourage you to consult with an attorney before imposing this requirement. If you have any questions, please feel free to contact our office at preloss@osba.org. 

Does the governor’s announcement of a “two-week freeze” apply to schools? (Revised Nov. 18)

• Facilities where K-12 school sports are practiced or played
• Facilities where recreational sports are practiced or played
• Indoor and outdoor licensed swimming pools, and licensed spa pools

Please be advised that all indoor K-12 sports, including conditioning, training and competition are prohibited at this time. See Oregon Health Authority’s Statewide Freeze Guidance – Outdoor K-12 School Sports, Limited Return to Play. If your school or college is engaging in any of the above activities using outdoor facilities, limit the capacity to a maximum of 50 people outdoors.

Additionally, make sure to continue to follow all other ODE, OHA, and OSHA guidance with respect to these activities and any other school activities. 

1. Training, conditioning and competition for outdoor non-contact and minimal/medium contact sports.
2. Training and conditioning for outdoor full-contact sports. 

Outdoor training and conditioning, such as weightlifting, running drills and intra-squad scrimmaging cannot include full contact of any kind.

Schools offering Hybrid or On-Site Instructional Models may allow their school sports teams to participate in any outdoor non-contact and minimal/medium contact sports. 

• Building operator practices, by Nov. 23, 2020
• Ventilation, by Jan. 6, 2021
• Conducting and documenting an exposure risk assessment, by Dec. 7, 2020 
• Establishing and implementing an infection control plan, by Dec. 7, 2020 
• Providing employees with additional information and training, by Dec. 21, 2020 

We know that careful and repeated cleaning of facilities is one way to slow the spread of COVID-19. Schools should refer to the applicable CBA when considering hiring new employees to assist in this. The COVID-19 virus is spreading rapidly requiring school facilities to be cleaned daily as new cases occur. See CDC guidance regarding cleaning.  

Can the school contract with outside vendors for cleaning?

Some schools are looking to contract with third parties to meet the additional cleaning needs. Schools should review their CBAs and applicable procurement laws prior to contracting out. Emergency procurement may apply. 

Are cleaning costs covered by PACE?

These costs are not reimbursable by PACE and a district should not enter into such a contract with the assumption that these costs will be reimbursable by any insurance provider. Districts should, however, keep track of their internal cleaning expenses as some of these may be reimbursable by State and Federal Authorities in the future. PACE recommends following the CDC Environmental Cleaning and Disinfection Recommendations.

Can schools provide child care at off-campus locations such as community centers or churches? (Nov. 20)

On Aug. 14, the Oregon Early Learning Division issued new guidance for having a center-based child care facility. Currently, the Oregon Early Learning Division website explains that temporary child care facilities (“pop-ups”) may only apply to operate Emergency Child Care if “they can demonstrate a community need." As such, the school and off-campus facility would need to demonstrate a community need and get approval by the Office of Child Care to operate an Emergency Child Care Facility.

Additionally, OHA has issued guidance for child care providers that would need to be followed.

OSBA also recommends schools require parents to complete our standard waiver as to school-sponsored child care services and the addendum our office developed specifically in response to the COVID-19 pandemic.

If you plan to have school-sponsored child care activities in religious facilities, public schools must be mindful that its activities do not endorse or provide benefit to any one religion, or religion over non-religion. At a minimum, make sure you are taking steps to cover or remove religious symbols from the space where the school-sponsored activity is taking place. This may include holding the child care services in as neutral a section of the facilities as possible. Consulting with legal counsel is also advised.

Can a school district open a day care facility on school grounds? (Nov. 20)

Governor Brown’s Executive Order 20-29 requires public school functions other than in-person instruction (including but not limited to child care, youth camps, and athletics) to comply with guidance issued by OHA, ODE, as well as “with directives and guidance regarding gathering sizes and physical distancing.”

For use of school facilities by an outside group, ODE’s guidance explains:

School districts will still need to assure that all OHA and CDC guidelines around physical distancing and other public health protocols and all other federal, state, and local agency requirements, including any additional guidance released by the Oregon Department of Education or the Oregon Health Authority are followed.

Under this guidance, school districts can allow child care activities to happen on school grounds by outside providers if all ODE, OHA, and CDC guidance will be followed regarding physical distancing, protective wear, cleaning/sanitizing, etc., related to the activity. For example, OHA has issued guidance for child care providers that would need to be followed. For on-campus activities sponsored by outside groups, you should have the organization sign this facilities use COVID-19 addendum. This form should be used in conjunction with your standard facilities use agreement forms.

The Oregon Early Learning Division issued guidance for having a center-based child care facility. Currently, the Oregon Early Learning Division website explains that temporary child care facilities (“pop-ups”) may only apply to operate Emergency Child Care if “they can demonstrate a community need." As such, the school and off-campus facility would need to demonstrate a community need and get approval by the Office of Child Care to operate an Emergency Child Care Facility. As such, the school would need to demonstrate a community need and get approval by the Office of Child Care to be an Emergency Child Care Facility.

Finally, if a district is giving a discount only available to employees or only offering child care to employees and it is not part of their compensation, then there may be potential ethics issue. If the district is charging a market rate for the child care and making it available to the community then it would not be considered a benefit or taxable income or have any ethics issues.   

Does the governor’s announcement of a “two-week freeze” apply to schools? (Revised Nov. 18) 

• Facilities where K-12 school sports are practiced or played
• Facilities where recreational sports are practiced or played
• Indoor and outdoor licensed swimming pools, and licensed spa pools

Please be advised that all indoor K-12 sports, including conditioning, training and competition are prohibited at this time. See Oregon Health Authority’s Statewide Freeze Guidance – Outdoor K-12 School Sports, Limited Return to Play. If your school or college is engaging in any of the above activities using outdoor facilities, limit the capacity to a maximum of 50 people outdoors.

Additionally, make sure to continue to follow all other ODE, OHA, and OSHA guidance with respect to these activities and any other school activities. 

1. Training, conditioning and competition for outdoor non-contact and minimal/medium contact sports.
2. Training and conditioning for outdoor full-contact sports. 

Outdoor training and conditioning, such as weightlifting, running drills and intra-squad scrimmaging cannot include full contact of any kind.

Schools offering Hybrid or On-Site Instructional Models may allow their school sports teams to participate in any outdoor non-contact and minimal/medium contact sports. 

Can school districts open their school playgrounds? (Revised Nov. 12)

Unlike other school facilities, school playgrounds are normally open to both students and the public. Pursuant to ODE’s updated Ready Schools Safe Learners Guidance for the 2020-2021 school year, school playgrounds can be opened for students if they meet the following requirements:

1. Before and after using playground equipment, students must wash hands with soap and water for 20 seconds or use an alcohol-based hand sanitizer with 60-95% alcohol.
2. Designate playground and shared equipment solely for the use of one cohort at a time. Outdoor playground structures require normal routine cleaning and do not require disinfection. Shared equipment (balls, jump ropes, etc.) should be cleaned and disinfected at least daily in accordance with CDC guidance.
3. Cleaning requirements must be maintained (as stated in section 2j of Ready Schools Safe Learners Guidance).
4. Maintain physical distancing requirements, stable cohorts, and square footage requirements.
5. Provide signage and restrict access to outdoor equipment (including sports equipment, etc.).
6. Design recess activities that allow for physical distancing and maintenance of stable cohorts.
7. Clean all outdoor equipment at least daily or between use as much as possible in accordance with CDC guidance.

The ODE guidance also provides information regarding public reopening of school playgrounds. Here, ODE is not listing all of the requirements for opening playgrounds to the public, but instead states, “Keep school playgrounds closed to the general public until park playground equipment and benches reopen in the community." (See OHA’s Specific Guidance for Outdoor Recreation Organizations).

Although school districts are not considered an “Outdoor Recreation Organization,” if school districts choose to open their playgrounds to the public, they must follow the same guidelines as an outdoor recreation organization. Some of the guidelines include:

1. Prior to reopening after extended closure, ensure all parks and facilities are ready to operate and that all equipment is in good condition, according to any applicable maintenance and operations manuals and standard operating procedures.
2. Post clear signs to reinforce physical distancing requirements between visitors of different parties.
3. Keep day-use areas that are prone to attracting crowds closed (including but not limited to playgrounds, picnic shelters/structures, water parks and pools, and sports courts for contact sports like basketball).
4. Prohibit contact sports.
5. Frequently clean and disinfect high-traffic areas and commonly touched surfaces.
6. Post clear signs (available at healthoregon.org/coronavirus) listing COVID-19 symptoms, asking visitors with symptoms to stay home and who to contact if they need assistance. 

Please see Oregon Health Authority’s Specific Guidance for Outdoor Recreation Organizations for a complete list of requirements. Additionally, school playgrounds cannot be opened to the public until park playground equipment and benches reopen in the community.

School districts need to follow ODE guidance to open their playgrounds to students and need to follow the OHA guidance as referenced by ODE to open their playgrounds to the public. 

Can schools open their grounds and facilities for youth athletics, summer camps, and similar activities? (July 1)

On June 24, 2020, Governor Brown issued Executive Order 20-29, which requires public school functions other than in-person instruction (including but not limited to childcare, youth camps, and athletics) to comply with guidance issued by OHA, ODE, as well as “with directives and guidance regarding gathering sizes and physical distancing.”

On June 15, ODE issued its Ready Schools Safe Learners Guidance for the 2020-2021 school year. That guidance explains:

The use of school facilities for school activities, school athletics, and youth athletic activities may resume at the conclusion of the school’s regularly scheduled school year. School districts will still need to assure that all OHA and CDC guidelines around physical distancing and other public health protocols and all other federal, state, and local agency requirements, including any additional guidance released by the Oregon Department of Education or the Oregon Health Authority are followed. 

Under this guidance, school districts can allow these activities to happen on school grounds if all ODE, OHA, and CDC guidance will be followed regarding physical distancing, protective wear, cleaning/sanitizing, etc., related to the activity. For example, Oregon Health Authority’s Specific Guidance for Outdoor Recreation Organizations has a list of criteria that must be met before a school playground can be opened. This criteria must be met before a school’s playground equipment can be used in connection with summer camps or other youth activities happening on school grounds. These requirements would apply to school-sponsored activities, or programs put on by outside organizations. It is important to note that ODE’s guidance requires school playgrounds to be kept closed to the general public until park playground equipment and benches reopen in the community.

For school-sponsored extracurricular activities, we recommend the school have parents sign a standard waiver and an addendum drafted specifically to use during the COVID-19 pandemic. For on-campus youth activities sponsored by outside groups, you can use our facilities use COVID-19 addendum. This form should be used in conjunction with your standard facilities use agreement forms. If you have any questions, contact OSBA attorneys at pacelegal@osba.org.

Should we update our facility use forms due to COVID-19? (July 1)

Under the Governor’s Executive Order 20-29, public school functions other than in-person instruction (including but not limited to childcare, youth camps, and athletics) must comply with guidance issued by OHA, ODE, as well as “with directives and guidance regarding gathering sizes and physical distancing.” If you decide to allow outside groups to use your facilities, you can use our facilities use addendums for school districts, charter schools and community colleges which were drafted specifically to use during the COVID-19 pandemic. This form should be used in conjunction with your standard facilities use agreement form. If you do not have a standard facilities use agreement form, contact OSBA attorneys at pacelegal@osba.org.

What are the face covering and social distancing requirements for in-person public meetings? (Revised Nov. 12)

Those attending in-person public meetings must maintain social distancing of six or more feet between individuals, wherever possible. Additionally, all those attending public meetings must comply with the Oregon Health Authority’s Statewide Mask, Face Covering, Face Shield Guidance. 

The Families First Coronavirus Response Act (“FFCRA”) was signed into law by the President on March 18, 2020. (Read full text of the law.) The act provides employees with paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and also provides for paid sick leave under the Emergency Paid Sick Leave Act (EPSLA). The act applies to schools and expands paid leaves available to school personnel. Some eligible employees will be entitled to up to two weeks of paid leave under EPSLA, and additional 12 weeks of leave under EFMLEA (the first two weeks of which unpaid, but the remaining ten are paid). In some situations, these leaves may be taken concurrently to provide 12 weeks of paid leave. EPSLA may be paid at full or 2/3 pay depending on the reason for the leave. EFMLEA is paid at 2/3.

The act is in effect from April 1, 2020 to December 31, 2020. Federal regulations were recently adopted for the FFCRA. For additional information, the U.S. Department of Labor has issued guidance. This act also made changes to a number of federal laws regarding school nutrition programs. For federal guidance regarding school nutrition programs please see the guidance on the USDA webpage.

Is paid leave under FFCRA subject to FICA taxes? (April 10)

Yes, except for the employer portion of OASDI, or “Social Security tax.” School districts must remit the Medicare tax portions of FICA for wages paid under the EPSLA and/or EFMLEA, and withhold employee contributions to both OASDI/”Social Security tax” and Medicare tax portions of FICA for wages paid under the EPSLA and/or EFMLEA. Forthcoming guidance for public agency employers from the Internal Revenue Service and Department of Labor is anticipated.

Can schools open for limited in-person instruction and small group instruction? (Revised Nov. 12)

Yes, but limited in-person instruction and small group instruction is only to be used in very limited circumstances. ODE’s supplemental Comprehensive Distance Learning Guidance to provide Limited In-Person Instruction (LIPI) describes the specific conditions and requirements for providing on-site limited person instruction. 

Can a teacher read a book aloud or post a video of themselves reading aloud to their class on an online platform without first obtaining permission from the book’s author? (April 8)

Yes, if conditions set forth in 17 USC § 110 (2) & § 112(f) are met. To meet these conditions schools must: 

• Give students notice that the text the teachers are reading has copyright protection.
• The reading must be an integral part of a class session offered as a regular part of the systematic mediated instructional activities.
• The reading must be directly related and of material assistance to the teaching content of the transmission.
• The amount of material presented must be comparable to that typically displayed in a live classroom setting.
• Transmission of the material must be limited to students enrolled in the course (through an online platform that requires password protection or similar measure). Teachers should not post on a public platform such as Facebook that would allow the dissemination of the work.
• The availability of the material is for the limited duration of this crises.
• Measures should be in place to prevent students from retaining a permanent copy or to further disseminate the information.
• A policy must be in place regarding the use of copyrighted materials, and information provided to faculty and staff about compliance with copyright laws. Schools should review their district’s policy “Reproduction of All Copyrighted Materials – EGAAA” and its accompanying administrative regulation. 

During this crisis some authors have altered their policies on copyright infringement. See J.K. Rowling grants open license. Additionally, some authors have also relaxed copyright requirements so educators may use their works during this time without requiring permission or fearing copyright infringement. See School Library Journal.

Can teachers share educational texts and workbooks online during distance learning?

Schools can share educational texts and workbooks online when they have the publisher’s written permission or a license agreement which allows for this. Schools should look to their license agreements to determine the allowable use of said materials. 

Can teachers share an author’s copyrighted recording over a public platform?

Schools can share an author’s copyrighted recording over a public platform when they have received written permission from the author or a license agreement which allows for this. Schools should look to their license agreements to determine the allowable use of said materials.

Schools generally need written consent from parents prior to the release of personally identifiable information. Schools are able to provide general, non-personally identifiable information to the community without fear of violating FERPA. For example, schools can tell the community that a student has a confirmed case of COVID-19 without releasing personally identifiable information provided names, ages, and grades are withheld. Schools should use caution if release of this limited information gives the community an idea of the identity of the student. FERPA permits an exception to the release of personally identifiable information when there is a health and safety emergency. Consider using this exception if you are asked to provide names, grades, and ages of students to a public health authority. The United States Federal Government has issued FERPA Coronavirus guidance.  

Can we require employees to disclose medical conditions or provide medical verification?

This is going to depend on the employee’s situation and the severity of COVID-19 in the area. Generally, employers cannot ask “disability-related” questions, but when the pandemic is severe enough to cause a “direct threat,” employers are able to ask additional questions. The EEOC has provided guidance that helps identify which questions can be asked.

Yes, to the maximum extent possible. School staff should review each student’s IEP and determine whether they can implement it in the context of Distance Learning for All. Many students receive special education in the general education environment, so the shift to Distance Learning for All may not require an IEP team meeting or IEP amendment. In other cases, IEP team meetings will need to be convened, either virtually or by phone, to address the current distance learning circumstances and amend student IEPs as necessary. If a school district cannot provide special education services in accordance with a student’s IEP during Distance Learning for All, school staff should collect data and consider providing compensatory services when the regular school session resumes. 

Click the following links to view ODE's guidance:

• Distance Learning for All: Family and Educator Resource 
• Frequently Asked Questions Regarding Special Education in Light of the Coronavirus (COVID-19) Outbreak (PDF)
• Supplemental Guidance on Meeting the Needs of Students with Complex Needs through Distance Learning for All (PDF)

Can we require employees in high-risk groups to come to work? (Revised Nov. 16)

On June 24, 2020, Governor Brown issued Executive Order 20-29. EO 20-29 provides, “Public school employees shall fulfill duties as may be assigned by their public school employers, consistent with the provisions of this Executive Order and guidance from ODE.”

On June 10, 2020, ODE, in coordination with OHA, created Ready Schools, Safe Learners, which provides guidance for the 2020-21 School Year. This guidance, requires schools to “support” school employees who meet the criteria for high-risk populations.

The guidance recommends:

• Coordinate with internal supports and/or local organizations to provide for staff members’ physical and mental health and well-being.
• Properly communicate leave notification requirements in federal and state laws to staff members.
• Develop and review a return-to-work protocol; develop a plan to protect the safety and well-being of all staff, including physical distancing and isolation protocols 

Can employees use leave to care for their children since school is closed? (Revised Nov. 16)

BOLI recently adopted a rule that specifically allows OFLA leave to be used when the employee is absent from work in order to “care for an employee’s child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.” OAR 839-009-0230(4)(a).

Oregon’s sick time law allows employees to use accrued sick time in the event of a public health emergency for the closure of an employee’s child’s school. ORS 653.616(6). See BOLI’s guidance for more information. Employees also may be able to use general sick leave.

Schools should review CBAs and any applicable contract language regarding additional leave. The federal government also has a sick time law in response to the pandemic that will provide paid leave for many school employees and can be used to care for a child during a school closure.

What should we do if staff refuse to work during the closure or ask to remain absent from work when schools reopen? Can they use OFLA, vacation time, and sick time to stay home? (Revised Nov. 16)

A generalized fear of COVID-19 will not be a justification for most people to refuse to work when asked or to refuse to return to work when schools reopen. The Oregon “sick leave” statute allows school employees to take leave for their own illness or injury but does not allow time for a public health emergency unless this is bargained into their CBA. ORS 332.507. However, the Oregon “sick time” statute allows employees to use sick time to care for the employee’s children during school closures necessitated by a public health emergency, for their own physical illness, to take care of a family member who is ill, and if the employee is in need of a medical diagnosis. ORS 653.616. Schools should review applicable CBA provisions.

Oregon OSHA’s COVID-19 Temporary Rule OAR 437-001-0744 also requires employers to conduct a risk assessment for employees.  Part of the risk assessment is to review each position to see if an employee can telework or otherwise work remotely. 

Employers can generally deny vacation requests if employees are needed at work. However, as long as the work of the school can continue without the employee, the school may want to allow employees to use their vacation time during a pandemic.

Employers should first assess whether the employee can work remotely.  If remote work is unavailable, allow employees to utilize any leave available to them.  Additionally, a school could consider allowing an employee an unpaid leave of absence. 

If you have any questions, contact OSBA attorneys at pacelegal@osba.org.

If an employee has a relative that has a condition that makes the relative highly susceptible to COVID-19, can the employee request leave to avoid contracting COVID-19 in order to protect their relative?

The employee could request the leave, but the district would likely not be required to grant it. An employee becomes eligible for OFLA/FMLA leave when the employee or a family member has a “serious health condition.” Each situation is different, but typically, having a condition that makes one more susceptible to COVID-19 would not qualify as a “serious health condition.” Consequently, OFLA/FMLA leave would likely not be available. A reasonable accommodation for a disability would not be required because the employee does not have a disability.

Can an employee take OFLA/FMLA leave if they have a condition that makes them more susceptible to COVID-19, but are not experiencing symptoms?

Probably not. OFLA/FMLA leave is typically available when an employee has a “serious health condition” as defined in the law. OAR 839-009-0210(20). Unless the condition itself qualifies as a “serious health condition,” the employee would likely not have a right to take OFLA/FMLA leave. Each situation is unique, and districts are encouraged to contact legal counsel with questions. If the employee were to contract the virus, it likely would then qualify as a “serious health condition” and OFLA/FMLA would be available. BOLI has provided a chart outlining situations in which leave is available. The condition may qualify as a disability under the ADA or other laws, and leave may be a reasonable accommodation. Districts are able to grant leave, even when they are not required to, but should be aware of the precedent that they are setting and consistently grant the leave.

What should we do when schools reopen if staff in “high risk” groups susceptible to COVID-19 ask to remain absent from work? 

An employee who has an underlying health condition and is concerned about coming back to work in what they feel is a high-risk situation should be treated as though they have a disability. This means the school needs to enter into the interactive process to determine whether the school can provide a reasonable accommodation which allows the employee to perform the essential functions of their job. A reasonable accommodation is one that does not cause an undue hardship to the school. In most cases there will be a reasonable accommodation the school is responsible for providing. To determine what that might be you will need to have conversations with the employee about what accommodations they believe would work for them. This will be a fact specific determination depending on each employee’s disability and what specific accommodations they need due to their particular health issue. A reasonable accommodation may include a period of unpaid leave. While an infinite amount of unpaid leave is not reasonable, an unpaid leave to the end of the school year may be reasonable. Normally you would also have the employee take their job description to their doctor and have their doctor outline their limitations and potential accommodations that would allow them to perform the essential functions of their position. Employers should consider temporarily waiving the requirement of a doctor’s note in order to avoid an additional burden on health care providers during a pandemic. If you will still require a note from the doctor, anticipate that there may be a delay in receiving such a note and you should not take adverse employment actions against an employee because they are unable to obtain a note.

Can district, ESD, and community college boards meet in person? (Sept. 2)

Yes. On September 1, 2020, the Governor issued Executive Order No. 20-38, which rescinded Executive Order No. 20-16. EO 20-16 required public bodies to hold public meetings and hearings by telephone, video, or other electronic or virtual means, “whenever possible.”

What are the face covering and social distancing requirements for in-person public meetings? (Sept. 2)

Those attending in-person public meetings must maintain social distancing of six or more feet between individuals, wherever possible. Additionally, all those attending public meetings must comply with the Oregon Health Authority’s Statewide Mask, Face Covering, Face Shield Guidance.

Can boards continue to meet virtually? (Sept. 2)

Yes, HB 4212, which was signed into law by the governor on June 30, 2020, allows public bodies to hold public meetings virtually.

Do boards have to allow members of the public to participate in virtual meetings? (Sept. 2)

Yes. If a meeting is held by telephone or video conferencing technology or through some other electronic or virtual means, the board must make available a method by which the public can listen to or observe the meeting. If the meeting occurs, virtually, the public body does not have to provide a physical space for the public to attend the meeting or hearing.

All regular meeting requirements remain in place, including notice, minutes and accessibility. If the board is voting on any issue, OSBA recommends the chair use a roll-call type of voting process to ensure each member’s vote is accurately captured. Additionally, we recommend that boards explore options to allow the public to provide input to the board and look for ways to remove barriers so that meetings remain accessible to all members of the public.

Do virtual meetings have to be recorded? (Sept. 2)

If the virtual meeting technology used by the school allows for it, meetings must be recorded and the recording must be made available to the public. This requirement does not apply to executive sessions.

How do boards satisfy any requirements for in-person testimony that might be required during a public meeting? (Sept. 2)

HB 4212 states that any public testimony or comment during a meeting does not have to be taken in person if the board provides an opportunity for submission of testimony by phone, video or other electronic or virtual means or provides written testimony that the board may consider in a timely manner.

Do boards still need a quorum to make a decision and has the definition of “quorum” changed? (Sept. 2)

Yes, a board still needs a quorum to make decisions; however, the definition of what constitutes a quorum has changed. HB 4212 states that, “notwithstanding any requirement that establishes a quorum required for a governing body to act, the minimum numbers of members of a governing body required for the body to act shall exclude any member unable to attend because of illness due to COVID-19.”

Can the board hold an emergency meeting regarding COVID-19? (Sept. 2)

Maybe. The official guidance regarding COVID-19 is changing rapidly. A circumstance may arise where a school board needs to make a quick decision, and if the board must make a decision and does not have time to provide 24 hours’ notice, an emergency meeting can be held. When an emergency meeting is held, the school must provide as much notice as the emergency allows, and the reason for the emergency must be documented in the minutes. ORS 192.640. All other regular noticing and public meeting requirements must be followed.

Can the board go into executive session to discuss matters relating to the COVID-19 virus? (Sept. 2)

There is not clear statutory authority allowing the district to go into executive session to discuss matters related to the COVID-19 virus. For that reason, our recommendation is that this discussion be held in open session. The statute that might allow these types of discussions in executive session is ORS 192.660(2)(k) “to consider matters relating to school safety or a plan that responds to safety threats made toward a school.” Again, because it is unclear whether this statute allows the district to go into executive session for this purpose, it is recommended that conversations related to COVID-19 occur in open session. 

Under normal circumstances, you are required to provide an initial response within five business days of receiving the request and complete the request within an additional ten days. Oregon statute specifies that “any day on which the central administration offices of the district” are closed are not considered business days, so closure days would not count towards the deadline. ORS 192.311(1). Even if the district office is open, you are not required to meet these timelines if “compliance would demonstrably impede the public body’s ability to perform other services” or “the staff or volunteers necessary to complete a response to the public records are unavailable.” ORS 192.329(6) - (7). One of these two may apply in your current situation. Consequently, you may not be bound to the statutory timelines.

This does not mean that you can ignore and forget the request. You should communicate the delay to the requestor if possible and fulfill the request as soon as you have the capability.

Does the “10-day drop” rule apply? (Revised Nov. 12) 

• Grades K-5: Attendance must be taken at least once per day for all students enrolled in school, regardless of the instructional model. (On-Site, Hybrid, Comprehensive Distance Learning, online schools)
• Grades 6-12: Attendance must be taken at least once for each scheduled class that day for all students enrolled in school, regardless of the instructional model. (On-Site, Hybrid, Comprehensive Distance Learning, online schools)

• Interaction can be evidenced by any of the following or reasonable equivalents:
  
  • Participating in a video class;
  • Communication from the student to the teacher via chat, text message, communication app or email;
  • A phone call between the teacher or education assistants/paraprofessionals and the student, or, for younger students, with the parent or guardian of the student;
  • Posting completed coursework to a learning management system or web-based platform or via email; or
  • Turning in completed coursework on a given day.
• When there is no evidence of student interaction during a 24-hour period surrounding a scheduled school day as described, students are reported as absent for the day (grades K-5/self-contained) or class (grades 6-12/individual subject). A day present for attendance may not be claimed for weekends or holidays, per ORS 336.010 and 187.010, or any other day during which a licensed or registered teacher is not available to students.
• Grades K-5: Attendance must be taken at least once per day for all students enrolled in school, regardless of the instructional model. (On-Site, Hybrid, Comprehensive Distance Learning, online schools)
• Grades 6-12: Attendance must be taken at least once for each scheduled class that day for all students enrolled in school, regardless of the instructional model. (On-Site, Hybrid, Comprehensive Distance Learning, online schools) 
• Alternative Programs: Some students are reported in ADM as enrolled in a non-standard program (such as tutorial time), with hours of instruction rather than days present and days absent. Attendance must be taken at least once for each scheduled interaction with each student, so that local systems can track the student’s attendance and engagement. Reported hours of instruction continue to be those hours in which the student was present.
• Online schools that previously followed a two check-in per week attendance process must follow the Comprehensive Distance Learning requirements for checking and reporting attendance.
• Provide families with clear and concise descriptions of student attendance and participation expectations as well as family involvement expectations that take into consideration the home
  environment, caregiver’s work schedule, and mental/physical health.  

Are there changes to the school enrollment process?

No. Students should be enrolled pursuant to standard ODE guidelines. Schools must follow ODE’s Ready Schools Safe Learners Guidance regarding visitors seeking to enroll students. 

Must school districts enroll and serve students during the Executive Order 20-08 and 20-20 school closure?  

Yes. School districts must enroll resident students and may enroll non-resident students under current laws, such as interdistrict transfers, pursuant to their policies and practice.  

Can public charter schools, including virtual public charter schools, enroll students during the Executive Order 20-08 and 20-20 school closure?  

Yes. Public charter schools may enroll students based on their school policies, charter agreements and state law.  

Can school districts drop a student from enrollment after a parent withdraws them during the Executive Order 20-08 and 20-20 school closure?  

Yes. A school district may drop a student from active enrollment if a parent withdraws the student from school or the school has knowledge that the student enrolled in another school district. Also, a school district may drop a student from active enrollment if it has knowledge that the student registered with an education service district as a homeschool student, or to enroll in a private school.   

How will State School Fund (SSF) allocations be determined for the remainder of the 2019-2020 school year?  

Allocations will be based on the school district and charter school Average Daily Membership (ADM) in the second period ADM collection as of December 31, 2019. The next SSF reconciliation in May 2021 will continue to use the 2019-2020 second period ADM in its final reconciliation. Enrollment and/or withdrawal of students will not impact ADM during the period of the Executive Order 20-08 and 20-20 school closure. The Oregon Department of Education has provided further guidance on this topic, including a Q&A addressing specific enrollment issues and how to report ADM in particular scenarios.

According to a recent update from the Oregon Department of Education, districts must still meet the April 15 deadline to submit SIA applications. Such applications do not need to be complete, however. Nor are board approvals now required before submitting the grant application. Board approvals will be necessary before the application is considered complete.

Online Engagement Guidance (PDF)

Are schools obligated to enforce the governor’s 14-day travel quarantine recommendation with respect to staff? (Nov. 19)

No. Schools are not obligated to require employees to quarantine for 14 days. While the Oregon Department of Education has issued guidance reiterating the governor’s request that “individuals should quarantine for two weeks upon return to the state,” executive Order No. 20-65 does not address the travel advisory or impose any requirement that schools enforce the 14-day travel quarantine recommendation.

If an employee chooses to self-quarantine for 14 days following travel, the employee may use any leave that would qualify for this purpose. If the employee does not have any qualifying paid leave available, the school may consider allowing the employee to use unpaid leave or telework. While schools are not obligated to do so, if the school wants to require employees to self-quarantine for 14 days following travel, we strongly encourage you to consult with an attorney before imposing this requirement. If you have any questions, please feel free to contact our office at preloss@osba.org. 

Does the new Temporary OSHA COVID-19 Rule apply to schools? (Nov. 16) 

• Building operator practices, by Nov. 23, 2020
• Ventilation, by Jan. 6, 2021
• Conducting and documenting an exposure risk assessment, by Dec. 7, 2020 
• Establishing and implementing an infection control plan, by Dec. 7, 2020 
• Providing employees with additional information and training, by Dec. 21, 2020 

What safety precautions should we take to protect staff that cannot telework and who must physically report to work? (Revised Nov. 16)

In situations where employees are required to come in to work, the district must take reasonable steps to ensure employee safety. Ready Schools, Safe Learners sets forth guidance for the 2020-2021 school year which addresses safety issues. It states “Schools must implement measures to limit the spread of COVID-19 within the school setting, such as appropriate disinfectant/sanitizing procedures; screening, monitoring, and isolation/exclusion for illness among symptomatic staff and students; use of face coverings; and limiting interactions between different groups of students (e.g., teachers moving between classrooms rather than students).” Schools are also required to update their Communicable Disease Management Plan and support school personnel who meet criteria for high-risk populations.

Additionally, Oregon OSHA’s COVID-19 Temporary Rule OAR 437-001-0744 provides requirements for all workplaces related to: physical distancing, masks and face coverings, sanitation, ventilation, risk assessments, and posting requirements.

Schools should follow appropriate guidelines from the health authorities. The following resources have been made available:

• Emergency Child Care in Response to COVID-19, ODE’s COVID-19 Updates
• OHA Guidance for Employers on COVID-19
• CDC Interim Guidance for Businesses and Employers

Upon returning to the workplace, can staff be asked whether they are experiencing COVID-19 symptoms or have had exposure to someone with COVID-19? (July 2)

Yes. OSBA has developed a sample COVID-19 Daily Employee Health Screening Form that schools may distribute to employees. The screening form asks about COVID-19 related symptoms that staff may be experiencing, as well as potential exposure to COVID-19. This information must be maintained as a confidential medical record in compliance with the Americans with Disabilities Act.

Can staff be required to sign an acknowledgment regarding new safety procedures implemented at school to confront the risk of COVID-19? (July 2)

Yes. OSBA has developed a sample Employee Acknowledgment of Safety Procedures Upon Returning to Work Form that schools may distribute to employees.

Can staff be required to submit to temperature checks? (July 2)

Yes. Federal and state health authorities have recognized the direct threat posed by COVID-19, allowing employers to take employee temperatures before they enter the workplace. However, it is important to note that some people with COVID-19 do not have fevers.  

Are any funds available to support worker safety?

Yes, SAIF has just established the $10 million coronavirus worker safety fund to help pay for expenses tied to preventing spread of the virus or to mitigate associated costs. Note that a school district must be a SAIF member to access the benefits.