COVID-19 FAQ

Can our school have an in-person celebration or ceremony for graduation? (May 22)

Oregon Department of Education has provided Guidance on 2020 Graduation and Moving Up Ceremonies. ODE’s Guidance states:

“If districts choose to hold small group (no more than 24 participants with at least 6’ distance maintained between participants), in-person graduation gatherings, districts should communicate the following expectations to participants:

• If you are sick or have a family member sick with symptoms resembling the flu or coronavirus, stay home.
• Vulnerable people, such as those with underlying conditions and older adults should stay home.
• Maintain a physical distance of at least 6 feet during any gathering.
• Wear a face mask.

Districts should ensure that: 

• The facility, including any nursery or children’s areas, seating areas, materials to be handled, etc. are thoroughly cleaned before and after the gathering (CDC Cleaning Guidelines).
• Hand sanitizer stations (at least 60 percent alcohol content) are easily located and accessible throughout the facility.
• Vulnerable people, such as those with underlying conditions and older adults, may attend virtually rather than in-person.”

Schools should be aware that conducting an in-person graduation ceremony is not without risk and could potentially violate the Governor’s Executive Orders. Executive Order 20-20 states “public schools shall limit school facility operations only to essential functions, consistent with any social distancing requirements set forth by OHA.” An in-person graduation ceremony or celebration might not qualify as an “essential function” because a school could conduct a virtual ceremony. Executive Order 20-25 rescinds the original stay-at-home order (Executive Order 20-12) but retains the language which prohibits social and recreational gatherings of any size.

Additionally, Executive Order 20-20 requires schools to facilitate telework to the maximum extent possible. Requiring staff to be present in-person may violate this provision of the order. In-person ceremonies are also risky as they may have the unintended impact of excluding disabled students with underlying health conditions who cannot participate under OHA and ODE guidelines due to falling within a high-risk category. If you choose to have an in-person ceremony, it needs to be voluntary and you should allow students and staff to attend virtually if they are not comfortable coming in-person.

Finally, illnesses arising from an in-person graduation ceremony or celebration might not be covered under PACE liability insurance. Liability is excluded if it is arising out of activities where a law or regulation was intentionally violated or ignored. There may be exclusions for communicable diseases as well.

Schools are advised to seek legal counsel before holding an in-person graduation ceremony. 

If my county is reopening, can coaches and students participate in school-sponsored camps or contests, or out-of-state activities? (May 26)

No. At the present time, school-sponsored camps and contests should be canceled. The closure of schools and organized youth activities under the governor’s orders is directed at schools without limitation to how or where those activities take place. Executive Order 20-20. The governor’s latest order Executive Order 20-25 discussing the phased reopening of certain business specifically states that Executive Order 20-20 regarding K-12 schools, is still in effect.

Oregon School Activities Association states “Beginning May 26, 2020 schools can control what they will allow to take place at their school facilities with athletic/activities programs, in accordance with directives from Governor Brown, the Oregon Health Authority (OHA) and the Oregon Department of Education (ODE). ODE has clarified that the directive stating that school facilities are closed through June 30th should be interpreted to mean that school facilities are closed through the end of the school/contract year.”

Can the school increase its custodial staff?

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.

What are public schools’ Distance Learning for All responsibilities? (April 24)

Unless otherwise directed by Executive Order or ODE, in-person classroom instruction is prohibited through June 30, 2020. To receive allocations from the State School Fund, public schools must provide students with high quality continuous education through Distance Learning for All.

Are schools required to assign social distancing compliance to a particular individual? (April 24)

Yes. The Governor’s Executive Order No. 20-20 requires that schools must designate someone to establish, implement, and enforce social distancing requirements consistent with guidance from OHA. There are no minimum qualifications for this assignment.

Delegation: Can the board delegate all their duties to the district superintendent?

No. The board cannot delegate labor contracts, policy adoption, or policy amendment. Many schools have delegated purchasing authority up to a certain dollar amount to the superintendent in policy DJ. See ORS 332.075.

What is the Federal Families First Coronavirus Response Act and how will it impact schools? (April 8)

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 our school have an in-person celebration or ceremony for graduation? (May 22)

Oregon Department of Education has provided Guidance on 2020 Graduation and Moving Up Ceremonies. ODE’s Guidance states:

“If districts choose to hold small group (no more than 24 participants with at least 6’ distance maintained between participants), in-person graduation gatherings, districts should communicate the following expectations to participants:

• If you are sick or have a family member sick with symptoms resembling the flu or coronavirus, stay home.
• Vulnerable people, such as those with underlying conditions and older adults should stay home.
• Maintain a physical distance of at least 6 feet during any gathering.
• Wear a face mask.

Districts should ensure that: 

• The facility, including any nursery or children’s areas, seating areas, materials to be handled, etc. are thoroughly cleaned before and after the gathering (CDC Cleaning Guidelines).
• Hand sanitizer stations (at least 60 percent alcohol content) are easily located and accessible throughout the facility.
• Vulnerable people, such as those with underlying conditions and older adults, may attend virtually rather than in-person.”

Schools should be aware that conducting an in-person graduation ceremony is not without risk and could potentially violate the Governor’s Executive Orders. Executive Order 20-20 states “public schools shall limit school facility operations only to essential functions, consistent with any social distancing requirements set forth by OHA.” An in-person graduation ceremony or celebration might not qualify as an “essential function” because a school could conduct a virtual ceremony. Executive Order 20-25 rescinds the original stay-at-home order (Executive Order 20-12) but retains the language which prohibits social and recreational gatherings of any size.

Additionally, Executive Order 20-20 requires schools to facilitate telework to the maximum extent possible. Requiring staff to be present in-person may violate this provision of the order. In-person ceremonies are also risky as they may have the unintended impact of excluding disabled students with underlying health conditions who cannot participate under OHA and ODE guidelines due to falling within a high-risk category. If you choose to have an in-person ceremony, it needs to be voluntary and you should allow students and staff to attend virtually if they are not comfortable coming in-person.

Finally, illnesses arising from an in-person graduation ceremony or celebration might not be covered under PACE liability insurance. Liability is excluded if it is arising out of activities where a law or regulation was intentionally violated or ignored. There may be exclusions for communicable diseases as well.

Schools are advised to seek legal counsel before holding an in-person graduation ceremony. 

 

How are public schools expected to provide instruction during school closures? (April 24)

Public schools are expected to deliver education in accordance with ODE’s Distance Learning for All guidelines. This includes the schools’ obligation to develop plans for delivering distance learning and services to students, including food services and social, emotional, and mental health support.

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.

Can schools release students’ personally identifiable information without consent?

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)

Should we continue to pay our employees’ salaries and maintain their benefits during a government mandated closure?

All public school employees must continue to be paid regularly, subject to budget and personnel decisions. Public school employees must report to work, telework if authorized, and fulfill duties as assigned by their employer, consistent with Executive Order No. 20-20 and guidance from ODE.

Schools should work with applicable collective bargaining units to come to agreements about which employees are working and how they are paid. For example, employees who are called in to work in a classification different from their own (i.e. an instructional assistant called in to work to perform the duties of a custodian) you should review CBA provisions. If none exist, consider bargaining this issue. If a bargaining group presents you with an MOU template, make sure to carefully review it and consider consulting with legal counsel before signing it. An MOU should not exceed the length of the closure and should be set to end on the last day of the government closure. For employees who are paid during the mandatory closure who are not reporting to work, you might want to consider whether those employees should be available during regular work hours for calls, emails and meetings. If you need some staff available for this purpose, look to your applicable CBA provisions in determining how to handle those situations. You should follow your regular procedures during spring break and any other regular holidays and closed school days. You should check your CBAs for “Emergency Closure” provisions for additional language about your obligations to employees.

The Executive Order is unclear regarding pay for substitute employees. All substitutes who have already accepted an assignment prior to the government mandated closure notice should be paid for those already scheduled shifts.  The school will need to come up with a plan regarding substitutes who were not already scheduled, but who substitute in the school. A suggestion is to look back at the substitute’s working hours during a defined time period and calculate the substitute’s weekly average and then pay them their weekly average during the closure.  This is not a legal requirement, it is a suggested approach to substitute pay.  Remember to review any applicable CBAs regarding substitute pay.

On April 8, 2020, Governor Kate Brown announced all public schools would remain closed for the rest of the academic year. In the governor’s previous Executive Order 20-08, the governor stated that public schools “shall continue to receive allocations from the State School Funds, as if they had been actually in session during the closure period.” This directive does not reference contractors and is unclear regarding whether schools need to continue paying contractors.

ODE Guidance regarding transportation, gives direction regarding contracted transportation services. School districts should first review their contracts with legal counsel to identify what they are responsible to pay when contracted transportation services are not provided due to school closures outlined in Executive Order 20-08. If a district determines they are liable to pay a portion, or the full amount of the contract, this would be considered an allowable expense under the Transportation Grant in the State School Fund.

If a district’s contract does not require them to pay their transportation contactor during the school closure, but the district wants to pay them anyway to assure that the contractor can maintain its services in the future, school districts may use the Transportation Grant in the State School Fund to reimburse these contracts (up to the applicable percentage) through the closure period so long as the contracts can be used to provide transportation services, in accordance to the Order, for delivering meals in non-congregate settings to eligible school sites; transporting children to and from school-based child care; and/or helping facilitate distant learning through the Governor’s directive. See ODE Guidance regarding transportation.

Additionally, the federal Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) signed into law on March 27, 2020 will provide federal funding to states to assist with costs incurred by public educational institutions in dealing with the COVID-19 pandemic. The act requires entities receiving funds under the act to continue to pay contractors “to the greatest extent practicable” during closures related to COVID-19. It is unclear at this time whether schools will be able to use CARES Act funds to be reimbursed in full or in part for the costs associated with paying contractors during this period of closure. Guidance from ODE suggests the state will only partially reimburse for contractors and only for services performed. See ODE Guidance regarding school funding and grants. Schools should assess their staffing needs and budgets in determining whether it is “practicable” to continue paying contractors.

If the school decides to continue to pay contractors during this closure, it should consider entering into an addendum contract with the vendor that ensures that federal reimbursements the vendor may receive during this closure be passed on to the school. Many of your contractors will also be eligible for federal funding and if they receive such funding while the school is continuing to pay the contractor, the school may be entitled to be reimbursed by the vendor. Schools should consult with legal counsel when entering into addendum contracts with vendors.

If the school determines that it is not “practicable” to continue paying contractors, the school should review the specific terms of the contract. The contract provisions the school should review are: when the contract is set to expire, whether there is an automatic renewal clause that needs to be addressed, whether there are provisions regarding how and when the contract may be terminated including force majeure provisions that often allow contracts to be terminated for events occurring outside of the parties’ control. Most force majeure provisions do not specifically reference closures due to global pandemics, but there may be broader language that is applicable. The school should consult with legal counsel if it determines it needs to terminate a contract early.

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.

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 employees use leave to care for their children since school is closed?

BOLI recently adopted a temporary 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 place of care has been closed in conjunction with a statewide public health emergency declared by a public health official.” OAR 839-009-0230(4)(a). This rule would apply in the current situation and is set to expire in September. 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 just passed 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?

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. BOLI recently adopted a temporary administrative rule that allows employees to take OFLA leave to care for the employee’s child during a school or child care closure necessitated by a statewide emergency. 839-009-0230(4)(a).

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.

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.

Now that some counties are in phase one of reopening, can boards in those counties start having in-person meetings if they comply with social distancing?

No. Executive Order 20-16 is still in effect and requires public bodies to hold public meetings and hearings by telephone, video or other electronic or virtual means “whenever possible.” This order is in effect during the “COVID-19 emergency period,” which on May 1, 2020, was extended for an additional 60 days, through July 6, 2020. The reopening of some counties does not terminate or alter the order and the order remains in effect until terminated by the governor.  

Are district, ESD, and community college boards required to meet virtually?

Yes. Executive Order 20-16 requires public bodies to hold public meetings and hearings by telephone, video or other electronic or virtual means “whenever possible.” 

If districts, ESDs, and community colleges cannot hold a virtual board meeting, what social distance guidelines should be used?

In the limited circumstances when a virtual meeting is not possible, districts, ESDs, and community colleges must maintain appropriate social distancing (six feet or more between individuals) at the meeting. See Executive Order 20-16.

Do boards have to allow members of the public to participate in virtual meetings?

Yes. Executive Order 20-16 states that when a board holds a virtual public meeting (except executive sessions) it must provide the public with a method to listen to or attend the meeting or hearing virtually at the time it occurs. 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.

How do boards satisfy any requirements for in person testimony that might be required during a public meeting?

Executive Order 20-16 forgoes any existing requirement for in-person testimony during a public meeting or hearing 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 under Executive Order 20-16?

Yes, a board still needs a quorum to make decisions; however, the definition of what constitutes a quorum has changed. Executive Order 20-16 states “A quorum of the governing body of a public body and the number of its members required for an affirmative act consists of a majority of its members, excluding those unable to attend because of illness due to COVID-19.”

How do boards comply with Oregon’s Local Budget Law which requires them to provide members of the public the opportunity to ask questions or provide comments on the proposed budget? 

Executive Order 20-16 allows boards to meet these requirements by providing the public with a method of appearing or meeting by phone, video, or other electronic methods and by also providing a means of submitting written communications including email or other electronic methods that the committee can consider in a timely manner. 

How do boards meet the strict requirements for publication of budget committee meeting notices and related documents in certain locations?

Executive Order 20-16 states that the requirement to publish any notice, summary or other document required by Oregon budget law can be satisfied by posting in a prominent manner on the internet.

If boards are unable to adopt their budgets by June 30, 2020, what happens? 

Executive Order 20-16 allows boards who fail to comply with the budget laws due to the public health threat underlying COVID-19 state of emergency or compliance with an executive order, to make reasonable expenditures for continued operation within its existing or most recently adopted budget, provided the board cures any failures to comply with budget law as soon as reasonably practicable.

Can the board hold an emergency meeting regarding COVID-19?

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?

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. 

Public Records: Are we required to respond to public records requests during the closure?

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.

If my county is reopening, can coaches and students participate in school-sponsored camps or contests, or out-of-state activities? (May 26)

No. At the present time, school-sponsored camps and contests should be canceled. The closure of schools and organized youth activities under the governor’s orders is directed at schools without limitation to how or where those activities take place. Executive Order 20-20. The governor’s latest order Executive Order 20-25 discussing the phased reopening of certain business specifically states that Executive Order 20-20 regarding K-12 schools, is still in effect.

Oregon School Activities Association states “Beginning May 26, 2020 schools can control what they will allow to take place at their school facilities with athletic/activities programs, in accordance with directives from Governor Brown, the Oregon Health Authority (OHA) and the Oregon Department of Education (ODE). ODE has clarified that the directive stating that school facilities are closed through June 30th should be interpreted to mean that school facilities are closed through the end of the school/contract year.”

Are schools closed? (April 24)

All public schools and private schools are prohibited from conducting in-person classroom instruction through June 30, 2020, unless otherwise permitted by Executive Order or directives from ODE. Schools are largely closed to members of the public but may still be “open” to perform various necessary services.

Executive Order No. 20-20 states that for schools to receive allocations from the State School Fund, they must continue to deliver Distance Learning for All, provide school meals, and provide critical student services and emergency management services. Executive Order No. 20-20 further states that all public school employees shall report to work, or telework if authorized, and fulfill duties as assigned by their employer.  

Colt Gill echoes these sentiments in his letter to Superintendents and Association Leaders dated March 20, 2020. Specifically, he states “The determination of which staff may be needed to work from home or onsite, with appropriate measures in place, sits with the school district leadership.” He further states that "the districts need the support of state and local association leadership to fulfill the responsibilities of the Governor’s Executive Order so that they can maintain the flow of state school funding and continue to regularly pay all school district staff.”

You may have language in your CBAs that defines closure, and sets forth which employees must report to work during different types of closures. As noted above, Governor Brown has ordered that schools “may require school employees to report to work…” ODE has stated that “the Governor may exercise her powers under the state of emergency statutes in a way that modifies existing collective bargaining agreements. Where there is a conflict between the governor’s executive order and the collective bargaining agreement, the executive order prevails.” ODE’s COVID-19 FAQ. If your CBA states that employees do not have to report to work under certain emergency circumstances, the governor’s order may take precedence.

Executive Order 20-09 and Executive Order 20-17 prohibit community colleges from conducting in-person classroom, laboratory and other instruction until further extension or termination by the governor. However, community colleges can provide “clinical, laboratory, or other in-person instruction associated with courses required for the completion of a health care-related certificate, license, or degree, or other certificates, licenses or degrees that are essential to emergency response and resiliency efforts, where no remote or online instruction is practicable.” Community colleges should employ social distancing measures when conducting any permitted in-person instruction.

Community colleges must limit on-campus operations to critical functions and must employ social distancing measures consistent with OHA guidance for all on-campus employees and residents.  

While schools are closed to students, what services are schools required to continue providing? (April 24)

• Distance Learning for All pursuant to ODE guidance (transportation grant funds from the State School Fund may be used to provide student access to distance learning and educational materials);
• Meals consistent with ODE and U.S. Department of Agriculture requirements (transportation grant funds from the State School Fund may be used to deliver meals);
• Critical student services and emergency management services, including child care for first responders, emergency workers, health care professionals, public school employees, and other individuals (transportation grant funds from the State School Fund may be used to provide student access to distance learning and educational materials); and
• Continued regular payment to employees, subject to budget and personnel decisions.

Are all school employees required to work while the schools are closed to students?  (April 24)

Yes. School employees are expected to work unless they are eligible for some type of leave. Employees who were on leave prior to the executive order cannot be forced to return to work until their leave expires. School leadership should assess what work needs to be done to comply with Executive Order 20-20 and then determine how to accomplish this work. Schools should be explicit in their communications about work expectations. Some employees will be required to be physically present at the work site while others can be required to telecommute. Efforts should be made to allow employees to telecommute to the extent possible. 

What if an employee who was on leave at the time the schools became closed to students asks to return to work now?

If an employee who was on leave at the time the school closed to students seeks to return to work and is able, schools should allow them to return to work. If the employee was on a FMLA/OFLA leave, schools can request a release to duty from a doctor prior to their return to work in accordance your FMLA/OFLA policy. Employees who are on an unpaid leave as an ADA accommodation may also want to return to work now that schools will be offering many employees telecommuting options. Schools should work with these employees to determine whether work from home is now a reasonable accommodation which allows them to perform the essential functions of their position. It is important to note that some leaves must be taken consecutively, so if an employee returns from leave, they may not be able to return to leave when students return to school. 

Can school employees telework while schools are closed to students?

Yes. Districts should review the necessary tasks and determine what can be done remotely. In a letter to school leaders, ODE stated “the determination of which staff may be needed to work from home or onsite, with appropriate measures in place, sits with the school district leadership.” Letter to Superintendents and Association Leaders, March 20, 2020.

Governor Brown has indicated that education providers should “facilitate telework and work-at-home by employees, to the maximum extent possible.” Executive Order 20-12. Some district tasks cannot be completed remotely: child care, custodial and meal delivery. Other responsibilities can be taken care of by employees working from home. Districts should review tasks and available technology to minimize the need for employees to come in to district facilities. ODE added that districts must “enforc[e] social distancing measures when staff must be onsite.” Guidance on Long-term School Closure – March 26, 2020.

Can we require people in high risk groups to come to work?  (April 24)

Governor Brown has made it clear that her order does not “require public school or private school employees in at-risk categories, or public school or private school employees who have an at-risk member of their household, to take action inconsistent with public health recommendations or the advice of the employee’s physician.” Executive Order No. 20-20, 13. Schools should carefully consider employee and school needs in developing work plans and assignments. If an employee indicates that they are unable to fill their work assignment, schools should work with the employee to determine if any accommodations can be made and if any leave is available. There are a variety of different types of leave that may be available for employees, including recent changes to state and federal leave laws. You should also review collective bargaining agreements, employment agreements and any applicable personnel policies.

How do we provide nutrition services while our schools are closed?

Many districts offer summer lunch programs. Districts can offer similar breakfast and lunch programs while schools are closed during other times during the year. For example, some districts are implementing programs which allow students to pick up pre-packaged meals at designated times during the day. Students can pick up the prepared breakfasts and lunches and take them home so that they are not dining in the schools. We recommend that you work with community partners to figure out what can be done to ensure that students have access to food while they are not in school. The Oregon Department of Education has provided further guidance on this topic. 

Do schools have to make up lost instructional time from the 2019-2020 school year? (April 24)

On April 16, 2020, the State Board of Education adopted temporary rules that waived many Division 22 requirements for the 2019-2020 school year, including the instructional hour requirement set forth in OAR 581-022-2320.

Does the “10-day drop” rule apply during the Executive Order 20-08 and 20-20 school closure?  

No. The rule that requires students be withdrawn from the active roll after ten consecutive full school days of absence is not applicable to school closure between March 16, 2020 and the end of the 2019-2020 school year. This is the case even if school staff cannot reach a student in an effort to deliver Distance Learning for All.  

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.

How will deadlines for applications for the Student Investment Account be affected by the schools closure?

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)

How do we handle substitutes? Do we have to pay them? Can they take sick time?

For substitute employees, see any applicable CBA language. If a substitute has already accepted an assignment prior to the government mandated closure notice, consider paying the substitute for that assignment consistent with your normal closure practices. If you do not have any applicable CBA language or normal closure practices, consider paying the substitute for the accepted assignment although this may not be legally required in some instances. This includes long-term substitutes that may be scheduled every day and your other substitutes that have different days scheduled in the coming weeks. If you are paying them, they would have no need to take sick time for those days. If you are not paying them, you should allow them to use sick time for those days. Oregon’s sick time law allows accrued days to be used during public health emergencies, which include the closure of an employee’s child’s school. ORS 653.616(6)(a) and OAR 839-007-0020(6)(a). Congress is currently considering legislation that would give employees two weeks of paid leave to help deal with sickness, closure and child care during COVID-19, and may impact this situation.

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. 

What safety precautions should we take to protect staff that cannot telework and who must physically report to work?

In situations where employees are required to come in to work, the district must take reasonable steps to ensure employee safety. For all businesses and non-profit entities, Governor Brown has prohibited work in offices “Whenever telework and work-at-home options are available.” Executive Order 20-12. While this may not apply to school districts, we recommend following this guideline and requiring employees to work from home if possible. 

For employees physically working in schools, 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