COVID-19 FAQ

Are school sports teams allowed to participate in training and competition? (Sept. 16)

For school sports activities to resume, schools must follow the Oregon Health Authority’s Statewide Reopening Guidance – K-12 School Sports, Limited Return to Play. Schools that comply with these guidelines may allow their school sports teams to participate in training and conditioning. Non-contact and minimal/medium contact sports can compete.

Minimal/medium contact sports include softball, baseball, soccer, volleyball, women’s lacrosse, and flag football. Full-contact sports such as football, rugby, wresting, cheerleading, basketball, hockey, dance, water polo, and men’s lacrosse are prohibited. The guidance addresses cleaning and disinfection, distance and occupancy, training and playing, and travel.

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.

Are school sports teams allowed to participate in training and competition? (Sept. 16)

For school sports activities to resume, schools must follow the Oregon Health Authority’s Statewide Reopening Guidance – K-12 School Sports, Limited Return to Play. Schools that comply with these guidelines may allow their school sports teams to participate in training and conditioning.

Non-contact and minimal/medium contact sports can compete. Minimal/medium contact sports include softball, baseball, soccer, volleyball, women’s lacrosse, and flag football. Full-contact sports such as football, rugby, wresting, cheerleading, basketball, hockey, dance, water polo, and men’s lacrosse are prohibited. The guidance addresses cleaning and disinfection, distance and occupancy, training and playing, and travel.

Can schools provide child care at off-campus locations such as community centers or churches? (Sept. 1)

On August 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 wavier 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 daycare facility on school grounds? (Aug. 11)

Governor Brown’s Executive Order 20-29 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.”

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 childcare 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 childcare 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.

For having a center-based childcare facility with services provided by school staff on campus, the Oregon Early Learning Division is developing new guidance for this type of program. 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 would need to demonstrate a community need and get approval by the Office of Child Care to be an Emergency Child Care Facility.  

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.

Can schools open for in-person summer school? (July 1)

Schools are permitted to open for limited in-person instruction and small group instruction, but only in very limited circumstances and must follow ODE guidance.

Governor Brown’s Executive Order 20-29 allows for schools to conduct in-person instruction pursuant to guidance issued by Oregon Health Authority (OHA) and Oregon Department of Education (ODE) relating to in-person instructional activities at schools.

On May 15, 2020, ODE released Supporting All Learners Beyond Distance Learning. This guidance supports planning for limited in-person, small group instruction and/or summer programming through the start of the 2021 school year.

Supporting All Learners Beyond Distance Learning provides the following guidance:

• Prior to starting limited in-person instruction or summer programs, schools must have written emergency procedures and disaster plans, which include procedures related to a virus outbreak. Schools must also have written communicable diseases plans.

• If your school does not have these plans/policies in place, please contact OSBA policy services. (See Virus Outbreak Policy EBC/EBCA; Communicable Diseases and Students Policy JHCC/JHCC-AR; Communicable Diseases and Staff Policy GBEB/GBEB-AR.)
• In addition to a school’s already established emergency plan, schools must also include protocols for notifying the local public health authority of any confirmed COVID-19 cases, a process and record keeping for contact tracing, a protocol for screening students and staff, a protocol to restrict from summer school any ill or exposed person or possible closure of the program.
• Schools must have a plan for physical distancing throughout the day, healthy hygiene practices, including but not limited to protocols for handwashing/hand sanitizing, reinforcing the use of face coverings, have adequate supplies for healthy hygiene, and have protocols for cleaning, disinfection, and ventilation.
  • Please refer to ODE’s Supporting All Learners Beyond Distance Learning for further detail.
• Schools are also encouraged to provide transportation services to students if providing limited in-person instruction. If providing transportation services, there is a list of requirements that must be met. (See ODE’s Supporting All Learners Beyond Distance Learning.)

ODE provided the following operational guidance on conducting limited in-person instruction:

• “Limited in-person instruction and small group instruction should be prioritized for students earning credit for on-time graduation, completion of a high school equivalency program, completion of Dual Credit or accelerated learning programs, or certification for career and technical education (CTE) or similar programs.
• Limited in-person instruction and small group instruction is to be used only when Distance Learning for All cannot support or approximate the requirements for required instruction or assessment, including, but not limited to:
  
  • A secure testing environment for a General Education Development (GED) exam;
  • Access to appropriate technology for an Advanced Placement (AP) exam;
  • Access to specialized equipment to demonstrate proficiency (e.g. demonstrating a weld for a welding certification program in safe welding booth); and
  • Access to limited-engagement, small group instruction, where online and offline Distance Learning cannot be supported, as determined by the district.
    • This is intended for small rural schools/communities where internet and phone access may not be available for some families (this use will require ODE approval), and the county must be in, at least, Phase 1 of the governor’s Reopening Oregon plan.
  • Assessments for Special Education eligibility requirements that can be completed with the six-foot physical distancing measures.
  • Administration of the English Language Proficiency Assessment (ELPA) Screener (once available). This assessment is administered 1:1 and is designed to identify students who may be English learners, or initially Proficient students, whom the Language Usage Survey data suggest should be screened.”

ODE also provides further safety procedures that must be implemented before a school can provide small group instruction:

• “Limited in-person instruction and small group instruction should be limited to one or few sessions, rather than daily or multiple sessions per week.
• Students and staff should only be together in the classroom space for the limited amount of time required for the activity (instruction, assessment, etc.).
• Students must be maintained in a single, self-contained, and stable classroom with 10 or fewer students (“stable” means the same 10 or fewer students are in the group each day).
  • Students may not transition into other classrooms.
  • The best practice is for a single teacher or instructor to serve the student group.”

It is also important to remember that the ODE guidance states: “Vulnerable populations should continue to stay at home. No provision of this guidance shall be construed to require staff, students or volunteers in at-risk categories, or staff or volunteers who have an at-risk member of their household, to take action inconsistent with public health recommendations or the advice of the individual’s physician. Those at high-risk for severe illness from COVID-19 shall not be required to provide in-person instruction.”

As stated above, a school or district must have a written emergency procedure and a written communicable disease plan that meets ODE’s requirements, a school must be able to fulfill all safety requirements before implementing limited in-person instruction, and even if all of those requirements are met, a school still cannot require “at-risk” employees to be present for in-person instruction during the summer.

Can school districts open their school playgrounds? (June 19)

Unlike other school facilities, school playgrounds are normally open to both students and the public. On June 15, ODE issued its Ready Schools Safe Learners Guidance for the 2020-2021 school year. The guidance from ODE is “effective immediately upon release.” The guidance states that school playgrounds can be opened for students if they meet the following requirements:

1. Students must wash hands before and after using playground equipment.
2. Designate playground and shared equipment solely for the use of one cohort at a time. Disinfect between sessions and between each group’s use.
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 between cohorts.

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 https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2342E.pdf.)

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.  

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? (July 1)

On June 24, 2020, Governor Brown issued Executive Order 20-29. EO 20-29 allows the Oregon Health Authority (OHA) and Oregon Department of Education (ODE) to provide guidance for in-person instruction and use of school facilities for other activities.

Oregon Department of Education has provided guidance on graduation ceremonies in both Guidance on 2020 Graduation and Moving Up Ceremonies. and Amended 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.

Additionally, Supporting All Learners Beyond Distance Learning For All, states vulnerable populations should continue to stay at home. 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. As of July 1, 2020, PACE will not provide insurance for communicable diseases.

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

Can schools open for limited in-person instruction and small group instruction? (June 2)

Yes, but limited in-person instruction and small group instruction is only to be used in very limited circumstances (as noted below).

Governor Brown’s Executive Order 20-20 prohibits schools from conducting in-person classroom instruction, except “limited in-person instruction and small group instruction, where necessary and appropriate, to fulfill educational requirements for students, for extended learning or summer learning opportunities, and for other purposes, consistent with guidance provided by ODE and OHA,” until June 30, 2020.

Schools remain closed under Executive Order 20-20. Instruction should be delivered through Distance Learning for All. Limited in-person instruction and small group instruction is not to be used in place of Distance Learning for All.

On May 15, 2020, ODE provided the following guidance for Supporting All Learners Beyond Distance Learning:

• Prior to starting limited in-person instruction or summer programs, schools must have written emergency procedures and disaster plans, which include procedures related to a virus outbreak. Schools must also have written communicable diseases plans.
  • If your school does not have these plans/policies in place, please contact OSBA policy services. (See Virus Outbreak Policy EBC/EBCA; Communicable Diseases and Students Policy JHCC/JHCC-AR; Communicable Diseases and Staff Policy GBEB/GBEB-AR.)
  • In addition to a school’s already established emergency plan, schools must also include protocols for notifying the local public health authority of any confirmed COVID-19 cases, a process and record keeping for contact tracing, a protocol for screening students and staff, a protocol to restrict from summer school any ill or exposed person or possible closure of the program.
  • Schools must have a plan for physical distancing throughout the day, healthy hygiene practices, including but not limited to protocols for handwashing/hand sanitizing, reinforcing the use of face coverings, have adequate supplies for healthy hygiene, and have protocols for cleaning, disinfection, and ventilation.
    • Please refer to ODE’s Supporting All Learners Beyond Distance Learning for further detail.
  • Schools are also encouraged to provide transportation services to students if providing limited in-person instruction. If providing transportation services, there is a list of requirements that must be met. (See ODE’s Supporting All Learners Beyond Distance Learning.)

ODE provided the following operational guidance on conducting limited in-person instruction:

• “Limited in-person instruction and small group instruction should be prioritized for students earning credit for on-time graduation, completion of a high school equivalency program, completion of Dual Credit or accelerated learning programs, or certification for career and technical education (CTE) or similar programs.
• Limited in-person instruction and small group instruction is to be used only when Distance Learning for All cannot support or approximate the requirements for required instruction or assessment, including, but not limited to:
  
  • A secure testing environment for a General Education Development (GED) exam;
  • Access to appropriate technology for an Advanced Placement (AP) exam;
  • Access to specialized equipment to demonstrate proficiency (e.g. demonstrating a weld for a welding certification program in safe welding booth); and
  • Access to limited-engagement, small group instruction, where online and offline Distance Learning cannot be supported, as determined by the district.
    • This is intended for small rural schools/communities where internet and phone access may not be available for some families (this use will require ODE approval), and the county must be in, at least, Phase 1 of the governor’s Reopening Oregon plan.
  • Assessments for Special Education eligibility requirements that can be completed with the six-foot physical distancing measures.
  • Administration of the English Language Proficiency Assessment (ELPA) Screener (once available). This assessment is administered 1:1 and is designed to identify students who may be English learners, or initially Proficient students, whom the Language Usage Survey data sugest should be screened.”

ODE also provides further safety procedures that must be implemented before a school can provide small group instruction: 

• “Limited in-person instruction and small group instruction should be limited to one or few sessions, rather than daily or multiple sessions per week.
• Students and staff should only be together in the classroom space for the limited amount of time required for the activity (instruction, assessment, etc.).
• Students must be maintained in a single, self-contained, and stable classroom with 10 or fewer students (“stable” means the same 10 or fewer students are in the group each day).
  • Students may not transition into other classrooms.
  • The best practice is for a single teacher or instructor to serve the student group.” 

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.
As stated above, limited in-person instruction and small group instruction is not to be used in place of Distance Learning for All, a school or district must have a written emergency procedure and a written communicable disease plan that meets ODE’s requirements, a school must be able to fulfill all safety requirements before implementing limited in-person instruction, and even if all of those requirements are met, a school still cannot require “at-risk” employees to be present for in-person instruction.

Schools should also be mindful that they will not have PACE coverage if they intentionally violate or disregard a law or executive order, and that injuries arising out of communicable diseases may be excluded from your insurance policies.  

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? (July 1)

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 May 15, 2020, ODE released Supporting All Learners Beyond Distance Learning. This guidance supports planning for limited in-person, small group instruction and/or summer programming through the start of the 2021 school year.

Supporting All Learners Beyond Distance Learning states that “Vulnerable populations should continue to stay at home. No provision of this guidance shall be construed to require staff, students or volunteers in at-risk categories, or staff or volunteers who have an at-risk member of their household, to take action inconsistent with public health recommendations or the advice of the individual’s physician. Those at high-risk for severe illness from COVID-19 shall not be required to provide in-person instruction.” Meaning, a school still cannot require “at-risk” employees to be present for work associated with limited in-person, small group instruction and/or summer programing.

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. Meaning, that in preparation and for the 2020-21 school year, school employees must report to work and fulfill their duties, as assigned by the school. However, if a school employee states they are in the high-risk category, then the school must work with the employee to try and make their jobs as safe as possible.

It is also important to remember that if an employee refuses to come back to work because they are high-risk, they may be eligible for the Emergency Family and Medical Leave Expansion Act (EFMLEA). Additionally, if an employee is high-risk because of a disability they may be eligible for protections under the ADA.

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

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.

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? (July 23) 

• 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)
• 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)

• 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 or email;
  • A phone call with the student, or, for younger students, with the parent;
  • 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. 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)
• 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) 

Are there changes to the school enrollment process? (July 1)

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)

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.  

What safety precautions should we take to protect staff that cannot telework and who must physically report to work? (July 1)

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.

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

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.