Last week, Governor Charlie Baker announced that all schools in the Commonwealth will be closed until May 4, 2020. Commissioner of Education Jeffrey Riley issued further guidance for public schools in light of the extended closure. The extended closure and Commissioner’s guidance raise a number of legal issues for schools. We recommend the following actions:
- Communicate remote learning plan to local association leadership. Although the Commissioner’s guidance resulted from extensive discussions with the two statewide teachers unions and other stakeholders, school districts have a legal obligation to inform their local association leadership as to how they intend to implement remote learning and provide the local association(s) an opportunity to demand bargaining over any changes in terms and conditions of employment related to remote learning.
- Review and negotiate over evaluations. With the extended closure, school districts should review their existing evaluation language in their educator collective bargaining agreement(s) and negotiate any necessary modifications as it is unlikely school districts will be able to conduct meaningful evaluations to comply with the existing contract language while engaging in remote learning. Similarly, school districts should review non-educator evaluation language for similar concerns.
- Notice to all associations/unions of Families First Coronavirus Response Act. We previously advised all clients of new federal legislation that provides for paid sick leave and paid family and medical leave under certain circumstances. The effective date of this legislation has been moved up to Wednesday, April 1, 2020. Our prior advisories can be accessed at our COVID-19 Resource Center. We recommend informing each association/union representative of the new legislation in order to ensure they have the opportunity to bargain over the impact of these new laws.
- Update FMLA policies and develop internal procedures to process new leaves. Based on initial guidance from the U.S. Department of Labor, all employers must adopt a policy or revise existing FMLA policies to address the new paid family and medical leave benefit. School districts should review existing processes, including payroll codes, to ensure they can accurately track such leaves.
- Evaluate Contracts with Outsourced Operational Services. One of the more frequent questions we have received relates to a school district’s obligation to continue payments to, for example, their contract bus service provider. Under the weight of potentially holding back federal stimulus funds from school districts who do not follow this guidance, Commissioner Riley has encouraged school districts to work with such vendors to renegotiate contracts to protect their interest in having those providers financially viable to continue providing services upon the return of students to school buildings. Commissioner Riley’s recommendation, however, must be reviewed in light of the terms of the existing contracts and applicable provisions of Massachusetts General Laws. We recommend obtaining specific legal guidance before making any decisions with regard to vendor contracts.
Mirick O’Connell’s Public Education Group and Labor, Employee and Employee Benefits Group will continue to monitor the latest developments regarding the Families First Coronavirus Response Act and will update you accordingly. Please contact any member of our team if you have any questions.
