By D&K’s School and Higher Education Law Team
School districts across the state are preparing for the probable outbreak of H1N1 in their district. Unfortunately, schools are a hotbed for the spread of H1N1 influenza and children have been disproportionately impacted by the virus. Questions abound as schools consider how a school closing due to H1N1 affects contracts, legal requirements and general school operations. The following represents guidance for school districts in planning for a possible school closing:
Review employment contracts and collective bargaining agreements. Each employment contract and collective bargaining agreement must be reviewed for the stated number of contract days, for any language addressing the event of a health-related school closing, and how employee compensation is affected, if at all, by such closing. If a district intends to impose layoffs in reaction to a school closure, any such action must also be in compliance with the relevant contracts.
Review Board of Education policies. Consider implementing a policy recommending that students and staff showing symptoms of the flu stay home and if they become sick at school that they be asked to go home. In compliance with Wisconsin law, the policy may authorize any teacher, school nurse or principal to send home pupils who are suspected of having a communicable disease or any other disease.
Know the relevant employment laws. The Fair Labor Standards Act (FLSA) requires that for an exempt employee to maintain his or her exempt status, the employee must receive his or her full salary for any week in which the employee performs any work without regard to the number of days or hours worked. If an employee is ready, willing and able to work, deductions generally cannot be made.
When there is a “plant closing,” an exempt employee under the FLSA does not have to be paid during a week that a plant is closed (and in which the employee performs no work). Therefore, if a school district closed for a period of more than one week, an employer would not be required to pay exempt employees for that week as a means of preserving their exempt status under the FLSA, but may still be required to do so due to contract or other requirements.
Know the law regarding school closures. Newly enacted Wisconsin Act 42 permits a school district administrator to close a school because of a “threat to the health or safety of pupils or school personnel, but not including inclement weather, unless the school board determines that the days will not count as school days.”
On November 10, 2009, Assembly Bill 557 was introduced. This bill would require that a school board, (within 24 hours of a school closure by a local health officer or DHS) or a school administrator (because of a threat to the health or safety of pupils or school personnel), notify the Department of Public Instruction that the school was closed and the reason for the closure. Within 24 hours of reopening a school, the school board must notify the Department of the reopening and the number of days the school was closed.
Section 121.02(1)(f)2., Wis. Stat., requires each school board to schedule at least 180 school days annually, less any days during which the state superintendent determines that school is not held or educational standards are not maintained as the result of a strike by school district employees. State law also requires minimum hours of direct pupil instruction that vary by grade.
Obtain updated DPI guidance. The Wisconsin Department of Public Instruction will be drafting administrative rules to address the criteria for waiving the requirement to schedule at least the minimum number of hours of direct pupil instruction under § 121.02(1)(f)2., Wis. Stat., if school is closed.
Communicate with the local health department. Section 115.01(10)(2), Wis. Stat., currently provides that a local health officer has the power to close a school. The local health department may have additional information or resources to help schools. Furthermore, schools should consider notifying the health department of attendance patterns, symptoms reported by staff and students and any confirmed cases of H1N1. Such notification must not include personally identifiable information about students to maintain compliance with FERPA.
Circulate infection control procedures. Distribute information to staff and students regarding proper hand washing and the importance of covering coughs and sneezes. Consider the supervised use of a hand sanitizer in classrooms and offices. Coordinate the cleaning of surfaces and items that come into frequent contact with staff and students.
Delegate additional responsibilities. Where possible, school district leaders should assign additional responsibilities as needed, such as monitoring and reporting student and staff attendance, addressing infection control and additional cleaning, and communicating with relevant parties such as staff, students, parents, the local health department, Department of Public Instruction and/or Center for Disease Control and Preventions.
Encourage staff and students to get vaccinated. Consider scheduling a vaccination clinic at the school. Impress upon staff and students the importance of getting vaccinated for both the seasonal flu and H1N1.
Have a plan in place. H1N1 spreads rapidly and individuals are contagious before their illness is apparent. Therefore, it is important for school districts to have a pandemic influenza plan in place. School board members, the district administrator, principals, nurses, counselors, social workers, psychologists, teachers, food service, clerical, and maintenance staff should play a role in developing and implementing the plan.
If you have questions regarding the information in this article please contact your Davis & Kuelthau attorney or the School and Higher Education Law Chair, James R. Macy, at 920.232.4841 / firstname.lastname@example.org.