Continued Flexibility for Teleconferenced Meetings Under the Brown Act

By Eric E. Stevens, Attorney at Law

At the start of the COVID-19 pandemic, Governor Gavin Newsom issued an Executive Order relaxing the Brown Act’s requirements and paving the way for the widespread adoption of teleconferenced or “virtual” board meetings in which members of a public board participate from a remote location by audio, video, or both. The Legislature has now formally amended the Brown Act though AB 361 to make it easier to continue holding teleconferenced meetings under “abbreviated teleconferencing procedures” through the end of 2023. However, AB 361 creates new conditions for any public agency trying to use these relaxed teleconferencing procedures.

The “default” for teleconferenced meetings is almost the same as it was pre-COVID-19:

  • Board members’ teleconference locations must be disclosed and publicly noticed.
  • Board members’ teleconference locations must be accessible to the public.
  • Agendas must be posted in advance at all teleconference locations.
  • A quorum of the board’s members must be physically present at publicly noticed locations within the agency’s jurisdiction where the public can observe the board meeting and offer public comment.
  • All votes taken during a teleconferenced meeting must be by rollcall of the present board members.

Teleconferenced meetings were relatively rare before COVID-19 because these requirements meant that if a board member wanted to teleconference into the meeting from home, the board member’s home address needed to be publicly disclosed with the meeting agenda and opened up to the public during the meeting.

A public agency can always follow these traditional requirements and stay compliant with the Brown Act.

However, AB 361 lets a local public agency’s board continue to hold teleconferenced meetings from October 1, 2021, to December 31, 2023, without disclosing and providing public access to teleconference locations or a physical meeting site in three circumstances:

  1. The meeting is held during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing;
  2. The meeting is held during a proclaimed state of emergency and the meeting is held for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees; OR
  3. The meeting is held during a proclaimed state of emergency and the board has determined, by majority vote, that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

As of this writing, the state of emergency declared by the Governor remains and state officials have “imposed or recommended measures to promote social distancing,” so every public agency finds itself in the first circumstance. If in the future a board finds itself in a proclaimed state of emergency, but state or local officials have not recommended measures to promote social distancing, the board can invoke these teleconference meeting exceptions by voting that meeting in person would present imminent risks to the health or safety of attendees. These changes to the Brown Act are brand new and untested, but this could potentially apply during states of emergency declared due to natural disasters like wildfires.

AB 361 imposes some new conditions that did not exist under the Governor’s expiring Executive Order. These conditions only apply where a board is trying to hold a teleconferenced meeting without satisfying the “default” rules highlighted at the beginning of this Legal Alert.

The principal condition added by AB 361 is that, so long as a state of emergency declaration remains active, or state or local officials have imposed or recommended measures to promote social distancing, a board must make monthly findings by majority vote that:

  • The board has reconsidered the circumstances of the state of emergency, AND
  • The state of emergency continues to directly impact the ability of members to meet safely in person OR state or local officials continue to impose or recommend measures to promote social distancing.

These changes go into effect October 1, 2021, but a board may retroactively make these required findings within 30 days of its first teleconferenced meeting post-October 1. These findings can take the form of a resolution that cites to this new requirement in Government Code section 54953(e)(3) and “finds,” “makes,” or “adopts” the facts above. Findings are factual conclusions, and additional explanation to support those factual conclusions strengthens them in the event of any legal challenge.

Once a board adopts a resolution that makes these required findings, the board must reconsider the issue and readopt the required findings every 30 days to continue to hold teleconferenced meetings under these relaxed rules.

It is helpful to remember that these requirements only apply if a board’s meetings are not in compliance with the Brown Act’s traditional requirements.

AB 361 also adds conditions related to disrupted broadcasts and public comment by phone or video during teleconferenced meetings:

  • If the meeting broadcast is disrupted, the board shall take no further action on items on the meeting agenda until the broadcast is restored and members of the public can again view or listen to the meeting, and offer public comment to the board.
  • The board cannot require public comments to be submitted in advance of the meeting and must provide an opportunity for public comment in real time.
  • While usually members of the public cannot be required to register as a condition of making a public comment, a public agency does not violate the Brown Act if a third-party internet website or online platform used for public comment requires users to register to use the service.
  • Where a board uses timed public comment periods, the comment periods must remain open for members of the public to register through a call-in or video service and be recognized until the timed comment period has elapsed.
  • Where a board allows public comment on separate agenda items without a maximum time limit for the public comment period, a “reasonable amount of time” must be allowed for members of the public to register through a call-in or video service and be recognized.

 

Again, these conditions regarding disrupted meetings and public comment periods only apply to teleconferenced meetings using the relaxed teleconferencing rules available under AB 361.

As a specific example, if a board convenes in-person within the agency’s boundaries for a properly agendized meeting and makes that meeting location available to the public to observe the meeting and offer public comment in-person, the board meeting is in compliance with the Brown Act’s usual, pre-COVID-19 requirements. If a video stream and video comment option is simultaneously offered to the public, the board may continue to conduct business even if that video stream is disrupted because the Board was not taking advantage of AB 361’s relaxed teleconferencing procedures.

Finally, remember that traditional Brown Act requirements remain regardless of whether you are taking advantage of AB 361:

  • Public agencies must still give advanced notice of each regular or special governing board meeting by publicly posting meeting agendas.
  • Members of the public must still have access to the meeting, the agenda must still provide an opportunity for members of the public to address the board directly, and the agenda must still identify the means by which members of the public can attend the meeting and comment, whether in-person or via a call-in option or an internet-based service option.

For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.

Top Six Back to School Tips for Administrators and Teachers

Author: Anisa Pillai

As the excitement of the 2021-2022 school year fast-approaches, some uncertainty still lingers as teachers and administrators continue to navigate educating students in the face of the COVID-19 pandemic and ever-changing rules and regulations. Here are our top six tips for a great start to the 2021-2022 school year:

  1. Local educational agencies (“LEAs”) must make sure staff members are informed and have a clear understanding of your District’s COVID-19 guidelines. Each local educational agency may have different protocols and procedures put in place depending upon local public health guidelines, and the landscape is constantly changing and evolving as new information becomes available. As such, it is critical that staff members have the most up-to-date information and are properly trained on COVID-19 safety protocols when the school year starts.
  1. For the 2021-2022 school year only, school districts and county offices of education (“COEs”) must ensure that independent study is offered as an educational option, which replaces distance learning. Districts may contract with a COE or establish an interdistrict transfer agreement to meet the requirements of offering independent study, or seek a waiver from the California Department of Education (“CDE”), under certain circumstances. School districts and COEs must also notify parents of the option to enroll their child in independent study, which includes information posted on the district’s or COE’s website regarding a parent’s right to request a meeting prior to enrollment, a pupil’s rights regarding enrollment and disenrollment in independent study, and requirements regarding synchronous and asynchronous instructional time, among other things. Clear communication with families is important in order to ensure that everyone is confident and prepared at the start of the school year.
  1. All LEAs must develop a plan for offering independent study to pupils impacted by school closures due to emergency conditions beginning on September 1, 2021.
  1. All LEAs must ensure that all IEPs are in place and being implemented with fidelity at the start of the school year. As discussed above, with the potential for changing protocols and guidelines, local educational agencies must ensure that a child’s entire IEP is accessible to all staff or service providers who are responsible for its implementation and that each IEP will be materially implemented.
  1. All LEAs must make sure that students and families feel supported and validated. The 2020-2021 school year and accompanying social isolation has likely been extremely stressful for students and parents alike. It’s important to ensure open lines of communication with parents who may be anxious about the changes to their child’s educational environment, and to support and validate students who may have anxieties about the changes in their lives as they return to school. For example, having a clear communication protocol and expressing empathy and understanding to parents and students will be important for creating a safe start to the school year.
  1. All LEAs should consider providing training to staff to strengthen their communication skills, including offering conflict resolution strategies and emphasizing the importance of presenting information clearly, tactfully, and with empathy when working with parents and students during the uncertainties of the continuing COVID-19 pandemic.

We recommend consulting an attorney if you would like additional details about any of the above tips.

Best wishes for a successful 2021-2022 school year!

Say What? Supreme Court Limits School District Regulation of Off-Campus Student Speech On Social Media

Author: Omer A. Khan, Attorney at Law

 

 

Summary:

On June 23, 2021, the United States Supreme Court ruled that the Mahanoy Area School District (District) violated the First Amendment when it imposed a one-year suspension on a student from participation in her junior varsity cheerleading squad for comments made on the student’s social media account. The Court reasoned that since the posts were created off school grounds, outside of school hours, and there is no evidence the posts caused a substantial disruption to the school environment, the District did not have a substantial interest in regulating the speech.

Facts:

In 2017 a 14 year old student learned she did not make her high school’s varsity cheerleading squad. On Saturday, the student posted a picture of herself and a friend with their middle finger raised and a profanity-laden caption attached to her Snapchat account. The student deleted the post in 24 hours, but not before the picture was viewed by 250 of her followers, including several of her coaches. The coaches reported the posts and the student was suspended from her junior varsity cheerleading squad for one year.

The student filed for a temporary restraining order in District Court for reinstatement to the cheerleading squad. The District Court granted the restraining order and subsequently granted the student’s motion for summary judgment. On appeal, the Third Circuit Court of Appeals affirmed the District Court’s decision.  The school district appealed to the Supreme Court.

Discussion:

Students have constitutional rights at school, including the freedom of speech guaranteed by the First Amendment. However, school districts are permitted to regulate specifically enumerated categories of student speech, including speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” (Tinker v. Des Moines Independent Community School Dist. (1969) 393 U. S. 503.)

The Supreme Court noted that schools can regulate off-campus student speech when special characteristics were present. These include:

 

  • Severe bullying or harassment targeting particular individuals;
  • Threats aimed at teachers or other students;
  • The failure to follow rules concerning lessons;
  • The writing of papers;
  • The use of computers;
  • Participation in other online school activities; and
  • Breaches of school security devices, including material maintained at school computers.

 

However, the Court noted that a school district’s efforts to regulate off-campus speech must face stricter scrutiny than on-campus speech, where a district is given substantial leeway under the First Amendment. The facts of this case did not present such special characteristics. The posts appeared outside of school hours from a location outside the school and the student did not identify the school in her posts or target any member of the school community with vulgar or abusive language. The content was posted through a personal phone to her private circle of Snapchat friends.

The Court also rejected the District’s argument that the school had a substantial interest in regulating the Snapchat posts. The District argued it had an interest in prohibiting students from using vulgar language to criticize a school team or its coaches but could not provide evidence of any other efforts to reduce vulgar language outside of the classroom. The District also argued that it was attempting to prevent disruption within the bounds of a school-sponsored extracurricular activity, but there was no evidence of such disruption outside of a few minutes discussion in a class and some irritation by team members. The District finally appealed to the need for team morale, but there was little evidence of such a decline; the cheerleading team continued activities regardless of the posts.

Conclusion:

School districts must take caution when attempting to regulate a student’s social media account or punish a student for content that was posted, particularly when it is off-campus and outside of school hours. Such regulation must satisfy the elements above to justify regulation and enforcement. The Supreme Court listed these special circumstances and noted such a list is not exhaustive. Districts should consult with legal counsel to ensure social media regulation and enforcement is consistent with students’ free speech rights.

Out of Sight, Out of Mind? Privately Placed District Resident Student Still Requires a FAPE from District

Author: Michael Tucker, Attorney at Law

Summary:

On June 1, 2021, the California Supreme Court denied a California school district’s petition for certiorari to hear the district’s arguments that it did not deny a privately placed district resident student a Free Appropriate Public Education (FAPE) when it refused to evaluate the student or develop an IEP.  The Supreme Court’s denial left the district bound by the 9th Circuit Court of Appeal’s ruling that a FAPE must be available to all resident students despite out-of-district enrollment when the district is aware that the student desires to return to the district.  (Bellflower Unified School District v. Lua, (2020) 832 Fed.Appx. 493; unpublished.)

Facts:

Student was a district resident but was unilaterally enrolled by her parents in a private school located outside of district boundaries.  Student qualified for special education services under the categories of speech and language impairment and autism. Student’s parents alleged that District was responsible for assessing Student and holding an IEP meeting, while district asserted that its responsibilities for Student’s education ceased when Student enrolled in a school outside of the district.

In 2017, after a due process hearing, the Office of Administrative Hearings held that the District was responsible for conducting assessments and holding an IEP meeting despite Student’s attendance at a private school outside of the district.  The District refused to comply with OAH’s order and after another hearing, OAH ruled that the District was also responsible for reimbursing parents for the private school placement.

The 9th Circuit Court of Appeals ruled that the District remained responsible for evaluating Student and providing special education services because Student was still a district resident.

Discussion:

The 9th Circuit found that pursuant to California Department of Education implementing regulations, a school district is responsible for evaluating a resident child for purposes of making a FAPE available even if the child is enrolled elsewhere.  The court noted that “‘the LEA where the child resides need not make FAPE available to the child’ if ‘the parent makes clear his or her intention to keep the child enrolled in the private elementary school or secondary school located in another LEA.’”  (Citing 71 Fed. Reg. at 46, 593.)   Here, the court found that parents made repeated requests to the District to hold an IEP meeting and indicated they were still interested in a public school placement.  The court further found a lack of evidence supporting the District’s contention that “parents expressed a clear intent” to maintain the private placement permanently.  Moreover, the Court affirmed the award of the private placement reimbursement because the District failed to make a FAPE available to Student in a timely manner prior to enrollment in the private placement.

After multiple requests from parents that the District hold an IEP meeting, the District refused, instead insisting that the Student’s IEP from years past was an adequate placeholder until Student reenrolled in the District.

Takeaway:

The court’s ruling serves as a valuable reminder of a school district’s responsibility for district resident students.  Despite the student enrolling in a private school out of the district, the court did not accept the District’s argument that such enrollment essentially relieved them of responsibility to offer an appropriate educational program due to the parents’ repeated and documented interest in returning to the District.  It appears the court found the District lacked evidence to support their position that the parent made it clear they did not intend to enroll Student in the District.

It should be noted that this particular opinion was not published.  This means that while its applicability is limited, the court’s recitation of the relevant law and its reasoning still provides valuable guidance.  As such, a district with resident students placed out of district who qualify for special education services should consider methods to determine if the students intend to return.  If so, the district can make plans to satisfy their obligations under the IDEA.  Districts should also carefully and clearly document when a parent indicates they do not intend to enroll their student with the district.

How To Address Requests for Retention of Students

Author:  Heather M. Edwards

As a result of school site closures due to the COVID-19 pandemic, parents of students with disabilities may be concerned about promoting their child to the next grade level during the coming school year.  In California, school districts and county boards of education are required to have a policy regarding the promotion and retention of students. (Ed. Code § 48070.) The policy must provide, among other things, parental notification when a pupil is identified as being at risk of retention and a process whereby the decision to retain or promote a pupil may be appealed. In addition, the policy must indicate the manner in which opportunities for remedial instruction will be provided to students to avoid retention. (Ed. Code § 48070.5). Therefore, local educational agencies want to ensure they are familiar with and adhering to their promotion and retention policies.

For students with disabilities, placement decisions under the Individuals with Disabilities Education Act (“IDEA”) are not synonymous with a school district’s policies and practices regarding the promotion and retention of its pupils. (Letter to Anonymous (OSEP 2000) 35 IDELR 35; Letter to Davis-Wellington (OSEP 2003) 40 IDELR 182.) The promotion or retention decisions for all pupils, including pupils with disabilities, are left to the state or local school district, and are generally not decisions left to the IEP team. (Letter to Anonymous (OSEP 2000) 35 IDELR 35.) However, IDEA does not prevent a state or local educational agency from assigning this responsibility to the IEP team. (Letter to Davis-Wellington (OSEP 2003) 40 IDELR 182.) Retention may also be considered as an appropriate remedy where there is evidence of a denial of FAPE, such as a school district’s failure to implement an IEP. (Letter to Anonymous (OSEP 2000) 35 IDELR 35.) For students with disabilities, the IDEA requires that an IEP specify any alternative promotion standards or requirements and the standards by which a student will be promoted.

The California Department of Education (“CDE”) has provided specific guidance related to the promotion and retention of students with disabilities. Generally, CDE recommends that where a student with a disability fails to meet board-adopted or individualized promotion standards, the IEP team should convene and consider certain questions including “did the student receive all the services identified in the IEP” and “was the student’s promotion standard appropriate and clarified in the IEP?” IEP teams should also consider what potential interventions and supports may be available to address parents’ concerns about potential learning loss and the impact to their child’s educational program, particularly when a child is transitioning from elementary to middle school or middle school to high school.

Interestingly, in response to school closures during the COVID-19 pandemic, the legislature has introduced Senate Bill 545 (Wilk) which would require school districts, upon receiving a request from a parent to retain a student for the 2021-22 schoolyear, to offer the student specified interventions and supports, certain credit recovery options, and to provide the parent information about research regarding the effects of pupil retention. We will be tracking this legislation as it moves through the process.

Translating Translation Requirements for Local Education Agencies

Authors: Eric E. Stevens and Omer A. Khan

Partially overlapping state and federal laws require local education agencies (“LEAs”) in California (school districts, charter schools, county offices of education) to translate certain documents into languages other than English for students and their parents or legal guardians. While some of these legal requirements are straight-forward and easy to apply, many requirements require subjective judgments by LEAs.

The Individuals with Disabilities in Education Act (IDEA)

Under the IDEA, certain documents must be translated into a parent/guardian’s native language:

The prior written notice provided to parents that proposes to initiate a change or reject a requested change in the identification, evaluation, or placement of a child with disabilities. (20 U.S.C. § 1415(b)(4).)

  • The copy, delivered annually to parents, of procedural safeguards under the IDEA. (20 U.S.C. § 1415(d)(2).)
  • The IEPs,  upon request of the parents. (5 C.C.R. § 3040; See below in relation to a parent’s informed consent.)
  • Information relevant to an activity for which an LEA is seeking a parent’s consent. (34 CFR § 300.9(a).)
  • Additionally, the IDEA mandates that parents are provided with an interpreter at all IEP Team meetings. (34 C.F.R. § 300.322.)

Additionally,  LEAs must ensure that parents have a “meaningful opportunity” to participate in IEP meetings.  As noted above, IEPs are generally required to be translated upon request.  In addition to a parents’ request, an IEP may require translation in order for the parents to give informed consent may. In some cases, courts have held that this requires providing parents with translated IEP documents in advance of IEP meetings. (Student v. New Haven Union School District (SEA Cal. 2010) 110 LRP 44200 [holding that failure to provide parents with translated copy of an IEP, even without request, resulted in a denial of a Free Appropriate Public Education (FAPE) because parents were unable to provide informed consent].)

In other cases, translation may not be necessary. (Vista Unified School District (SEA Cal. 2014) 114 LRP 130 [holding that translation of IEP was not necessary even when requested by mother because father was a fluent English speaker who translated the documents for her, and mother was able to actively participate in IEP team meetings through an interpreter with the father also present].) Whether translation is required to ensure parents’ “meaningful participation” must usually be determined on a case-by-case basis.

There have been several legislative attempts to add to the types of IEP documents that must be translated upon parent request (including revisions to the IEP and evaluations, assessments, and progress data used to determine eligibility or determine eligibility) and to establish a 30-day timeline by which documents must be translated. (See SB 695 in 2020, SB 354 in 2019, both vetoed.)

Other Federal Requirements

Title VI of the Civil Rights Act is a federal statute that prohibits discrimination in the provision of services by federally-funded entities, including schools. Under Title VI language-based discrimination constitutes illegal discrimination on the basis of national origin. (See Lau v. Nichols (1974) 414 U.S. 563.) The Department of Justice’s regulations and guidance requires that federal funding recipients take “reasonable steps” to provide “information” in languages other than English to ensure “meaningful access” under Title VI. (28 C.F.R. § 42.405(d)(1).) Federal courts have used the DOJ’s guidance as persuasive authority in interpreting Title VI. (See U.S. v. Maricopa County, Ariz. (D. Ariz. 2012) 915 F.Supp.2d 1073, 1080 [“The DOJ coordinates government-wide compliance with Title VI and its interpretation of Title VI is entitled to special deference”.)

The DOJ states that schools must communicate information to limited English proficiency (“LEP”) parents in a language they can understand about any program, service, or activity that is called to the attention of LEP parents. The DOJ’s fact sheet for schools is available from the DOJ at: https://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-lep-parents-201501.pdf.

A non-exhaustive list of information that should be translated includes information and materials regarding:

  • Registration and enrollment in school and school programs.
  • Grievance procedures and notices of nondiscrimination.
  • Language assistance programs.
  • Parent handbooks.
  • Report cards.
  • Gifted and talented programs.
  • Student discipline policies and procedures.
  • Parent-teacher conferences.
  • Special education and related services, and meetings to discuss special education.
  • Requests for parent permission for student participation in school activities.

The DOJ issued guidance in 2002 to help public agencies comply with Title VI. (2002 Guidance, 67 Fed. Reg. at 41,459, available at: https://www.govinfo.gov/content/pkg/FR-2002-06-18/pdf/02-15207.pdf) LEAs are encouraged, but not required, to develop “LEP plans” that guide their efforts to serve LEP students and parents. Whether or not an LEA develops or updates an LEP plan, the 2002 guidance suggests four factors for consideration when determining whether documents should be translated or interpreters should be provided:

  • The number or proportion of LEP persons the LEA serves or encounters in the eligible service population (students);
  • The frequency with which LEP individuals (students or parents) come in contact with the program, activity, or service;
  • The nature and importance of the program, activity, or service to people’s lives; and
  • The resources available to the LEA.

LEAs are encouraged to consider these factors when deciding whether certain documents or categories of documents should be translated. These factors are subjective, so they do not produce clear, definitive answers to whether particular documents or communications must be translated. While resources are a relevant factor, the Guidance cautions that recipients of federal funds “should carefully explore the most cost-effective means of delivering competent and accurate language services before limiting services due to resource concerns.” (2002 Guidance, 67 Fed. Reg. at 41,460.)

LEAs are also encouraged to translate “vital written materials,” but whether a given document constitutes a “vital written material” depends “upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner.” (2002 Guidance, 67 Fed. Reg. at 41,463.)

The guidance recognizes that “reasonable steps may cease to be reasonable where the costs imposed substantially exceed the benefits.” (2002 Guidance, 67 Fed. Reg. at 41,460.) For example, a timely and complete oral interpretation or translated summary of a vital document might suffice in some circumstances. (Id. at 41,456, 41,460.) Additionally, “well-substantiated claims of a lack of resources” relieves an LEA of responsibility to translate “all vital documents into dozens of languages” but an LEA must still “translate those documents into at least several of the more frequently-encountered languages and to set benchmarks for continued translations into the remaining languages over time.” (Id. at 41,461.)

California’s Education Code

State law creates an additional requirement to translate certain documents. Education Code section 48985 requires LEAs to translate parental notifications into a language other than English when 15% or more of students at a District school speak that language.

Takeaway

In conclusion, partially overlapping state and federal laws impose multiple requirements to translate documents, notices, and communications into languages other than English for students and their parents. Many times there is no clear, objective, answer to the question of whether translation is required in a particular circumstance. Please contact us if you required assistance developing a limited English proficiency plan or navigating translation and interpretation issues.

Recent Court Rulings Address Applicability of COVID-19 Regulations

By:  Anisa Pillai

On February 25, 2021, a San Francisco Superior Court issued a ruling authorizing Cal/OSHA to continue to enforce its Emergency Temporary Standard Regulations (“ETS Regulations”).  This ruling was one of a few such rulings testing the applicability of state guidance regarding COVID-19 potentially impacting schools and other employers.

ETS Regulations

The ETS Regulations apply to most California employees and provide instructions to employers regarding the steps they must take to reduce and prevent the spread of COVID-19 in the workplace.

On November 30, 2020, after extensive public comment, Cal/OSHA adopted new regulations applying to all employees and places of employment with more than one employee who does not have contact with other individuals, employees working from home, and employees who are covered under the limited Aerosol Transmissible Diseases standard which only applies to specified health care, correctional, and other specialized settings. Among other measures, the ETS Regulations:

  • Require employers to establish a COVID-19 Prevention Program which, among other things, must address communicating information to employees about COVID-19 and investigating and responding to COVID-19 cases in the workplace;
  • Require employers to provide COVID-19 testing to employees at no cost during work hours under specified circumstances;
  • Require employers to exclude from the workplace all employees who have, or have been exposed to, COVID-19 for a period of 10-14 days consistent with current public health orders. Employers must maintain employee earnings, seniority, and all other employee rights and benefits during this exclusion period unless the exposure is shown to be non-occupational;
  • Require employers to provide twice weekly COVID-19 testing when there are 20 or more COVID-19 cases within an exposed workplace within a 30 day period;
  • Require employers who provide employees with transportation to and from work to prioritize shared transportation assignments to minimize exposure to COVID-19 in the same manner as they do shared housing.

Prior to promulgating the above ETS Regulations, Cal/OSHA did not have a specific enforcement standard that projected the majority of workers from COVID-19 in the workplace.

In December 2020, the plaintiffs, representing the retail and agricultural industries, filed suit in the Superior Court of California, County of San Francisco, seeking to restrain Cal/OSHA from enforcing the ETS Regulations.  Plaintiffs argued that the ETS Regulations should never have been promulgated in the first place because, among other reasons, Cal/OSHA lacked the authority to adopt such regulations on an emergency basis and ETS Regulations violate due process.

The Court rejected the plaintiff’s arguments and denied their application for a preliminary injunction. The Court stated, among other things, “…the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health weigh heavily in favor of the continued implementation and enforcement of the ETS Regulations.”

The Court further stated that “with the single exception of restrictions on attendance on religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations, and deaths that follow in its wake. This Court will not be the first. Lives are at stake.”

The Court found that there was nothing novel about the ETS Regulations requirement that employers must continue to provide pay and benefits to workers who are excluded from the workplace due to COVID-19, and that Cal/OSHA has enforced similar requirements when employees are excluded from the workplace for other reasons such as exposure to lead or toxic substances. The Court also found that Cal/OSHA has the “broad regulatory authority” to mandate COVID-19 testing of employees. Finally, as discussed above, the Court found that the public health risk posed by enjoining Cal/OSHA from enforcing the ETS Regulations outweighed the financial cost to the employer to comply with the regulations.

School Specific COVID-19 Rulings

While COVID-19 regulations in the employment environment are unlikely to change any time soon, regulations in the school setting are constantly evolving. For example, on March 15, 2021, a San Diego County judge issued a temporary restraining order blocking the state of California from applying its January framework to schools reopening for in-person instruction. The January framework prohibited middle and high schools from reopening while their county was in the purple tier and required schools to have at least four feet of distance between students in a classroom. In other words, a county’s tier status cannot prevent schools from reopening. The order, which applies statewide, is being appealed.

Additionally, in February a San Diego County Court issued an order prohibiting the county from preventing middle and high school students from participating in youth sports that are operating under the same or similar COVID-19 protocols being enforced by professional and college teams. The Court, in making its ruling, stated that the rates of transmission in high school sports are equal to or less than those observed in recent studies involving major league baseball and national football, and that children are less likely to develop severe illness or die from COVID-19 and are less commonly infected with the virus.

Takeaway

The ETS Regulations are in place through September 2021. As such, employers should continue to comply with the ETS Regulations and ensure that their policies and procedures are consistent with said regulations.

Additionally, due to the constantly changing landscape of the rules regarding in-person instruction on both the state and county level, LEAs should keep informed of any new changes and ensure that they are in compliance with the most recent regulations.

Employer-Mandated COVID-19 Vaccinations

Author: Omer A. Khan, Attorney at Law

Background:

Many employers are asking whether they can require employees to get vaccinated against COVID-19. The answer appears to be a qualified “yes.”

The Equal Employment Opportunities Commission (“EEOC”), the federal agency responsible for enforcing federal employment laws, issued Guidance regarding the ways in which employers’ mandatory COVID-19 vaccination policies implicate employee rights under various federal statutes. The state of California has not passed legislation or issued regulatory guidance to address the issue, but the emerging consensus is that employers, including public employers, may require employees to get vaccinated against COVID-19 with certain exceptions and limitations.

  1. Exceptions to a Mandatory COVID-19 Vaccination Policy

The EEOC Guidance notes that individuals with a disability have the right to refuse vaccination on account of their disability under the Americans with Disabilities Act (“ADA”). Additionally, individuals with sincerely-held religious beliefs or practices can also refuse vaccination under Title VII of the Federal Civil Rights Act. These individuals are entitled to reasonable accommodations in the workplace as long as such accommodations do not pose an undue hardship on the employer.

Absent an undue hardship, an individual who is not vaccinated for these reasons cannot be excluded from the workplace unless there is no way to provide a reasonable accommodation. Permitting remote work or modifying job duties could be a reasonable accommodation, but whether a potential accommodation is “reasonable” under the ADA is a very fact-specific analysis that depends on the workplace and the employee’s unique circumstances. For help on finding reasonable accommodations, the Guidance recommends consulting the Job Accommodation Network (“JAN”) website as a resource for different types of accommodations at www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

Additionally, under the ADA, employers cannot implement a policy that “screens out or tends to screen out an individual with a disability” unless it can show that the individual has a disability that poses a “significant risk of substantial harm” to the employee or to others. To justify the requirement, employers are required to conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.

Also note that the decision to require employee vaccinations could require collective bargaining under California law, either as a negotiable term and condition of employment or as to impacts and effects of a non-negotiable decision.

  1. The ADA Imposes Requirements on Employers Regarding the Vaccination Process.

The Guidance notes that, while administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate ADA provisions on disability-related inquiries because the questions could elicit information about a disability. As a result, employers who administer vaccines or require employees to get vaccinated must ensure any vaccination questions are job-related and consistent with business necessity.

Additionally, any medical information that an employer obtains about an employee pursuant to a vaccination policy must remain strictly confidential. This medical information must be kept in the employee’s medical file, separate from the employee’s personnel file. Medical information also includes the fact that an individual has requested, or is receiving, a reasonable accommodation.

Conclusion:

If you are considering a policy to mandate COVID-19 vaccines for employees, there are a number of federal and California laws that require attention. In order to navigate the overlapping requirements, please contact our firm for an individualized assessment and recommendation.

80% Not Enough: ALJ Rules That 20% Shortfall Entitled Student to Compensatory Education

Author: Michael Tucker, Attorney at Law

Summary:

On October 12, 2020, the Office of Administrative Hearings ruled that a California school district denied a high school student a Free Appropriate Public Education (FAPE) when the district provided the student only 80% of the student’s IEP-required specialized education.   (Long Beach Unified School District, 120 LRP 33840.)

Facts:

Student qualified for special education under the category of “intellectually disabled.” Student’s Individualized Educational Program (IEP) included five hours of specialized academic instruction.  Like most California schools, the district closed its schools on March 16, 2020 due to the COVID-19 pandemic.  On April 23, 2020, District began offering students 3-4 hours per day of blended teacher-directed learning and self-directed learning.

However, from the date of closure until March 22, 2020, District did not provide Student, or any other student, with any instruction.  From March 23, 2020 until April 9, 2020, District provided Student with some distance learning but that did not include any direct teaching or any related services from Student’s IEP.

The blended learning eventually provided to student consisted of 3-4 hours per day of direct online instruction and self-directed learning.  Of which, 1.5 hours were dedicated to direct teacher instruction from the Student’s moderate to severe special day class curriculum, and the rest of the time the student would complete activities and work assigned by the teacher.  The provided services represented about 80% of the amount of services required by Student’s IEP.  The Administrative Law Judge (ALJ) also pointed out that the District did not begin implementing Student’s IEP until the 19th day of distance learning.

Discussion:

Generally only material failures to implement an IEP constitute an IDEA violation.   (Van Duyn v. Baker School Dist. (2007) 502 F. 3d 811, 822.)  “A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP.” (Id.) “The materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.” (Id.)

Here, the ALJ was not convinced by District’s arguments that COVID-19 related challenges prevented the District from implementing the IEP in its entirety.  Instead, the ALJ ruled that providing 80% of the required services represented a material failure to follow Student’s IEP.  Notably, the ALJ determined that the alternative delivery model which included both teacher-directed and self-directed learning was appropriate for Student, it just was not enough. As such, the ALJ awarded Student compensatory education.

Takeaway

All Local Educational Agencies (LEA) have faced challenges regarding providing special education and related services to students without being able to provide in-person instruction.  However, as this case suggests, relying on those challenges to excuse IEP implementation may come at the risk of violating a student’s right to FAPE.  Specifically, the ALJ noted “while unavoidable circumstances prevented [District] from fully implementing [Student’s]…IEP, the IDEA included no exceptions to implementation for school closures caused by pandemics or governmental directives.”

It should be noted that the ALJ specifically looked at the number of hours required in Student’s IEP compared to what was being provided by the District during distance learning and considered both synchronous and asynchronous delivery models.  LEAs should take from this that every effort should be made to provide students with disabilities with the services specifically required an IEP and have evidence to support that any alternative delivery models are providing the services as required.

Governor Newsom Releases Safe Schools for All Plan

 

By:  Anisa Pillai

On December 30, 2020, Governor Newsom released a framework for bringing students back to school for in-person instruction. According to the Governor, “Developed in partnership with the Legislature, the Administration’s plan focuses on ensuring careful implementation and building confidence by supporting schools to bring back the youngest children (TK-2) and those who are most disproportionately impacted first, then phasing in other grade levels through the spring, as conditions allow.”

Governor Newsom further stated that this plan to resume in-person instruction is based upon growing evidence that the right precautions can prevent the spread of COVID-19 in schools, especially elementary schools. Distance learning will continue to remain an option for parents and students.

California’s Safe Schools for All Plan is built upon four pillars:

(1)  Funding: $2 billion will be made available in January for the safe reopening of schools beginning in February, with priority given to TK through 2nd grade students and those who are disproportionately impacted.

(2)  Safety & Mitigation: The Administration will focus on safety and mitigation, including the following:

  • Testing: The Administration will support frequent COVID-19 testing for all school staff and students, including weekly testing at schools in communities with high rates of transmission.
  • PPE: All students and staff are required to wear masks, and surgical masks will be recommended for school staff. The Administration will distribute millions of surgical masks to schools at no cost. The Administration has also enabled schools to leverage state-negotiated master contracts for PPE to reduce costs and streamline supply chains.
  • Contract Tracing: Schools will continue to be on-boarded onto the School Portal for Outbreak Tracking (SPOT) and members of the state contact tracing workforce will be deployed to improve communication with schools.
  • Vaccinations: School staff will be prioritized in the distribution of vaccines through the spring of 2021.

(3)  Oversight & Assistance: The Safe Schools for All Team will be a cross-agency team composed of staff from CDPH, Cal/OSHA, and educational agencies, and will provide hands-on support to schools.

(4)  Transparency & Accountability: A state dashboard will enable all Californians to see their school’s reopening status and a web-based hotline will allow parents and school staff to report concerns to the Safe Schools for All Team.

Local educational agencies (LEAs), especially those serving TK-2nd grade, should begin to monitor the development and rollout of the Safe Schools for All Plan once schools resume in 2021 to ensure that in-person instruction resumes pursuant to this new framework.  While many questions remained unanswered, the Governor’s plan appears to address some concerns related to reopening.