Risk Management |
For more resources, see COVID-19 Resources for the Independent School Business Office.
Last week, the first U.S. schools closed in response to COVID-19 illnesses among the campus community or potential exposures. The students, families, faculty and staff impacted have returned from trips abroad or interacted with infected people in the local area. As of Monday, March 9, at least one public school district in the Seattle area and several West Coast universities have temporarily closed and moved to online learning, and independent schools around the country have closed for deep cleaning following reports that individuals in the school community have contracted the disease or were exposed to it.
Schools are considering how the business office can prepare in a range of ways, from cleaning and closure to liability concerns and facilities rentals. NBOA is working closely with other associations, including NAIS, TABS, EMA and SAIS, to update recommendations. Here’s what we know now:
Review your school’s policies and handbooks and ensure that they clearly delineate how employees should report illnesses, how the school will provide emergency notifications and how leaders will clarify behavioral expectations. The employee handbook should explicitly state that all employees are required to notify human resources or their manager if they are ill.
Managers should report all illnesses to human resources while ensuring that neither managers nor peers expose employees’ personal medical information to other employees. It is critical that schools clearly respect employees’ right to privacy and medical confidentiality, and share medical diagnoses on a need-to-know basis. All documents related to employees’ health conditions should always be stored in a secure location separate from personnel files.
If an employee is diagnosed with COVID-19, the school should let other employees know if they have been potentially exposed to the disease without letting them know the source of the virus.
COVID-19, which stands for coronavirus disease 2019, is caused by a virus named SARS-CoV-2. Originating in Wuhan, China, it has now been found in over 85 countries and has been declared a global health threat by the World Health Organization. According to the latest information from the Center for Disease Control, symptoms or respiratory illness appear between 2 and 14 days after exposure and can include fever, cough and shortness of breath. While many carriers experience either mild or no symptoms, the disease can be very serious with a global death rate of 3.4%. Those with pre-existing conditions and men over the age of 50 are the most at risk of mortality. No vaccine currently exists, and there are no effective treatments yet for the disease once contracted. COVID-19 appears to be able to live outside the body for a few hours with a longer lifespan on hard surfaces, but it is responsive to disinfectants, soap and water, and hand sanitizer.
More information, including handouts which can be provided to employees, can be found on the CDC’s website.
With consistent communication, schools can reduce rumors, establish trust and increase the likelihood that employees will follow the school’s guidance should an outbreak occur. Good sources of information for the latest developments are websites for the World Health Organization, the CDC, and the U.S. Department of Health and Human Services as well as the local health department.
Battle Ground Academy in Franklin, Tennessee, recently handled the COVID-19 diagnosis of a school parent. The school’s communications have emphasized that the school is in close communication with local public health authorities and have proceeded out of an abundance of caution and in coordination with authorities. Read the school’s initial and follow-up communications and find their resource page here.
Begin by informing employees that the school is monitoring developments and proceeding with the best interests of the community in mind. Then clearly communicate behavioral expectations, including those regarding hygiene and illness, telework and absence, and travel. If/as conditions change, update expectations, with clear explanations for any changes whenever possible. Communications should not be alarmist and should use easily comprehensible language for all persons, should provide context when possible, and should maintain flexibility for the school to alter its plans should the situation change.
Relay expectations related to hygiene protocols at the school immediately and post reminders in highly trafficked areas. The CDC recommends frequent hand washing with soap and water for longer than 20 seconds and use of alcohol-based hand sanitizer when soap and water are unavailable. Employees should avoid touching their eyes, face and mouth with unwashed hands, and cover all coughs and sneezes with a tissue, which they should then properly dispose.
Face masks have not been found to be effective in preventing the spread of COVID-19, and schools can disallow employees who are not medical first responders from wearing masks if they are seen as disruptive to operations. Conversely, schools who wish to require employees to wear face masks must provide training on proper use and make accommodations for those with medical conditions that are made worse by masks.
Public health officials have developed guidelines to help control the rapid spread of COVID-19. Schools with an employee who has been diagnosed with COVID-19 should report it immediately to the local or state health department and consult their school counsel for guidance on further reporting requirements. Depending upon the circumstances under which the employee contracted the disease, further reporting to OSHA or your worker’s compensation provider may be required.
Communicate clearly to employees what the school expects of them if they are exposed to COVID-19. Strongly encourage employees who are ill or who have an illness in their family to remain home.
The CDC recommends that those who have been exposed to COVID-19 but are not diagnosed to remain under a 14-day self-quarantine. Schools may require a medical release in these circumstances only if there is a documented exposure to the virus.
Those who have been diagnosed with COVID-19 must remain under quarantine for a minimum of 14 days and until they are asymptomatic, as per the CDC’s orders. Schools should require a medical release before allowing ill employees to return to school.
As always, employees have a right to privacy. Employers are not legally allowed to ask questions that probe protected information when they suspect an employee is ill. For example, managers may not ask, “Have you been diagnosed with COVID-19?” Managers may ask, however, if an employee has been in a situation which may have exposed them to the disease, such as travel to hot spots or contact with people who are ill, or if they are experiencing flu-like symptoms. Managers may also send an employee home based upon visual confirmation of symptoms of illness, but they should be careful not to make statements which could be seen as being medical diagnoses or indicating bias.
There have been reports of businesses screening employees for fevers prior to allowing them to report to work. Mass medical screenings by employers are not usually legal and should not be implemented. Further, screening only certain demographics of employees or treating them differently based upon a perception of heightened susceptibility to COVID-19, including employees of Asian descent or those with pre-existing conditions, likely violates Title VII of the Civil Rights Act of 1964.
If the school suspects that an employee has reported to work while ill, the school should separate the employee from other employees and students, and send him or her home immediately. Unless restricted by state or local law, the school can require employees to remain home under quarantine until they are asymptomatic or have a medical release from a doctor. Under federal law, schools cannot terminate an employee due to a COVID-19 diagnosis.
Schools may offer to pay for diagnostic visits or medical treatment, but they are not obligated to do so under federal law. Any such offers should be applied uniformly to all employees. If telehealth options exist, it is prudent to advise employees of these options and recommend that they utilize them. The CDC has stated that doctors’ offices cannot do COVID-19 testing and community members should not go to medical offices if they suspect they have COVID-19. If telemedicine options are not available, they should call their general practitioner or a local hospital for instructions.
Note that in the case of a COVID-19 diagnosis, employees may be forced to take specific actions ordered by public health officials. These are legally enforceable directives and must be supported by employers.
Schools should also put into place and communicate expectations around payment of wages when employees are unable to report to work due to illness. In most circumstances, schools are not obligated to pay hourly employees who are unable to report to work or unable to work remotely. Schools should check collective bargaining agreements and state or local laws for exceptions. Salaried employees who are able to work but are being required by the school to self-quarantine must be paid. Employees who have accrued sick or personal time should be permitted to use it (and can often be compelled to use it) if they are not being paid for their time away from work.
Employees who contract COVID-19 and are required to self-quarantine are likely eligible for protections under the Family Medical Leave Act (FMLA) and may also be eligible for any state-mandated sick leave. Those who experience extended illness may be eligible for disability payments under any active policies and may require Americans with Disabilities Act (ADA) accommodations related to extended leave or partial days upon return to work.
For more guidance on the ADA, see the EEOC's recent bulletin, What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.
Officials are recommending that, if possible, employers pay all employees for COVID-19-related quarantines because paid sick time discourages employees from attempting to come to work while ill. According to the New York Times, 68% of employers recently surveyed intended to pay employees for the entirety of their quarantine period, 12% intended to pay employees for the first two weeks of quarantine, and 20% had not yet decided upon a course of action.
The CDC has asked employers to provide employees with flexibility regarding medical releases when employees want to stay home due to illness. In areas with high rates of infection, doctors may have limited capacity to provide medical releases, and the requirement of one may disincentivize employees from voluntarily staying home when sick. Please note some states also regulate when a medical release can be requested by an employer, so schools should consult their school counsel prior to making any changes to employee leave policies related to medical releases.
Schools may experience increased employee absenteeism related to COVID-19. Some absenteeism may be related to illness and proactive self-quarantine; other absences may be due to employees’ hesitation to work in an environment that they believe could be unsafe. At all times, the school has a right to enforce its attendance policies, including call-out requirements and regular check-ins. Before reacting harshly to increased absenteeism, however, assess potential reputational damage.
As always, responses to absenteeism should be assessed on a case-by-case basis. Employees who become ill with COVID-19 may develop mild symptoms and return to work at the appropriate time with no issues, while others may develop much more serious symptoms and require more time to heal and/or job modifications upon return. Contracting COVID-19 can be extremely stressful; notify those who fall ill of any support services available to them through an employee assistance program.
Employees who have not fallen ill but have pre-existing conditions that would put them at increased risk of death from the disease may have grounds for leave or telework as an ADA accommodation. Employees who are not ill but who refuse to report to work can be suspended without pay pending an investigation into the necessity of an accommodation, and the school would be within its rights to request medical documentation before proceeding. It should be noted that an employee does not need to be diagnosed with an illness in order to be eligible for ADA protections; the employee only needs to be regarded as having the illness. Employees who are treated poorly by their peers because they are regarded as having had COVID-19 are afforded the same protections as those who were actually diagnosed with the virus.
Further, the contraction of COVID-19 during the course of an employee’s work, such as nursing or dorm parenting, could be grounds for receiving worker’s compensation in some jurisdictions. Employees would not be eligible if they contract it incidentally from a co-worker unless it is established that the contraction was the result of negligence on the part of the school. All COVID-19 diagnoses should be discussed with school counsel to assess potential liabilities.
Schools with employees who travel should take extra precautions and limit travel as much as possible. Travel to countries listed by the CDC or the State Department as threat level 3 or higher is not recommended at this time. When travel is required, the school should communicate clearly with employees about expectations such as the following:
Employees who travel to areas experiencing an outbreak or who are showing signs of illness upon return should self-quarantine for 14 days.
Boarding schools have special considerations given that they are “in loco parentis” for students, and may face particular enrollment management challenges if they enroll a significant number of international students. Most boarding schools are planning to keep open their dorms for spring break, according to a survey shared during a recent webinar by The Association of Boarding Schools. Some are passing through some/all costs to families or having parents sign new contracts for that time period.
As for quarantining faculty members or students who test positive or come back from an affected region, plans include using unused dorms or the gymnasium. It is not recommended that schools send infected or exposed individuals to a hotel.
See the results of the flash survey by TABS.
Most schools are cancelling all international and many domestic trips, but if a school intends to continue a trip, they should re-write the consent agreements specifically calling out the threat of COVID-19 and have parents sign them again, said Ron Wanglin, chairman of Bolton & Company. The courts have generally said if something like COVID-19 is not called out and occurs on the trips, parents are right to say, “The school didn’t think this was a big enough threat to consider” and rule on the side of the parents, he explained.
If the school decides to cancel a trip, clearly communicate the reason for the cancellation in sufficient time for families to make alternative arrangements. As for financial implications, if the planned destination has a Level 4 travel designation from the U.S. Department of State, insurance will likely cover the cancellation. If trip insurance is not in place or the threat level from the State Department does not warrant cancellation under insurance guidelines — a level 3 designation, such as Italy has as of March 9, may not be covered — schools will need to decide if they are going to allow parents to forfeit money or if they will cover the families’ expenses. Decide this prior to sending communications.
Schools should develop a communicable disease action plan if they do not already have one. This plan should address:
Property owners have a duty to protect both residents and visitors from hazards which are not open and obvious. These hazards can include communicable diseases, and schools could be liable for damages related to negligence if they do not respond appropriately to the dangers presented by COVID-19.
Check facilities rental agreements to see what clauses might allow your school to cancel the contract. Most schools are cancelling all facilities rentals, even if they do not have a clause in the contract and will need to pay damages to the group who was renting the facility, said Wanglin. Having large groups of unaffiliated people on campus is simply too large a risk.
Clean and disinfect frequently touched objects and surfaces when the risk of communicable disease is high. Post signage that encourages good hygiene, including hand washing, and provide hand sanitizer in well-trafficked areas. If someone with COVID-19 may have been on school grounds, schools that house residents have an obligation to tell residents, even those who are not employees or students.
By Brandon Perry, Director of Facilities and Transportation Services, Phoenix Country Day School
A few years ago, we had a norovirus outbreak in our lower school division. At that time, we asked our janitorial service to come in and do a "deep clean." They did a wonderful job of wiping down every flat surface on the campus with disinfectant. We also purchased cases of wipes and had our faculty wiping down everything many times a day.
Then the virus hit the middle school, and we did the same thing the very next weekend. At that point, we realized that it was a large and expensive undertaking to keep doing this over and over. It takes a ton of supplies, time, money and manpower to deep clean 183,000 square feet multiple times. Then it hit the upper school.
I had been interviewing janitorial companies for cleaning bids at that time. One company I interviewed showed me a machine that they used to disinfect schools and hospitals. It was a Clorox Total 360 System. So I hired them to disinfect our lower and middle schools and at the same time, started the process of purchasing this machine.
My crew disinfected the entire campus, and we have used it every year since. It has been effective and easy to use. The "fog" it produces is electrostatically charges so it sticks to everything and kills most viruses in two to five minutes. It works on hard surfaces as well as soft surfaces like couches and chairs. The room is safe to re-occupy after around 15 minutes. I have my night crew do one division each night, and it only takes one to two hours for each division. The whole school can be disinfected by one person on a Saturday if needed.
At the first sign of an outbreak, we start will disinfecting and also plan to use it immediately after our spring break (the last two weeks of March). A lot of our students travel overseas at that time and they tend to bring things back with them. We do not want to start too early so as to conserve the amount of product we have. I have placed an order for more product, but I suspect the availability may diminish as COVID-19 progresses.
Kevin Folsom, director of campus operations at Trinity Christian Academy, looks to APPA: Leadership in Educational Facilities for its recommendations on maintaining a clean and healthy campus.
Proactively consider the potential effects of COVID-19 on operational costs related to employee benefits. A local outbreak could affect disability or worker’s compensation rates in the future. Health insurance rates may also increase. Employers can alter their health insurance coverage to limit the financial liability of cost increases, but changes to health plans should not target specific groups of people or specific diagnoses in a discriminatory manner.
Some states are directing insurers to waive cost-sharing requirements on health insurance policies when the purpose of the visit is for coronavirus testing. Self-insured or HSA-compatible plans may be regulated by federal mandates which contradict these state-level directives. Schools should check with their insurers or third party administrators to see if their coverage is affected and/or being changed by the insurer in response to these directions.
See “Stormy Markets, Steady Institutional Investors” (web-only, Jan 2019) for information on developing a “crisis playbook” for your school’s endowment.
Further, the financial markets have experienced volatility related to COVID-19. Lockton companies reports that during disease outbreaks, the markets drop an average of 9.5%, and the current market is consistent with previous experience. While reactionary measures are not advised, it is prudent for board finance committees and employee retirement plan investment oversight committees to convene to review their investments to ensure they are meeting their fiduciary obligations and providing an adequate array of options. Information committees may find helpful can be found here. All considerations should be documented in meeting notes.
See “Academic Continuity During COVID-19 Closures: A Case Study” (web-only, March 2020) for more resources regarding remote learning preparations.
Schools should analyze which functions of the school are necessary to continue operations if a campus closes. This includes education, but it may also include operations in accounting, payroll, college counseling, or admissions. Should an outbreak require a temporary facilities closure, schools may need to consider remote learning options. Proactively analyze what faculty and staff will need to facilitate remote learning, including conducting a survey to ensure all faculty and staff would have access to high speed internet and adequate technology. Schools should make decisions about potentially funding necessary upgrades for faculty and students prior to the need to act.
In the event of a school closure, schools may be concerned that families will claim the school has not fulfilled the enrollment contract if “services aren’t fully rendered” — whether or not the school implements online learning. “If the school does not have language in the enrollment contract or handbook that supports changes to how things are delivered and when, that’s a concern,” said Debra Wilson, president of the Southern Association of Independent Schools.
Ensure that enrollment contracts are clear about refunds and the circumstances under which the school will refund money, advised Ron Wanglin, chairman of Bolton & Company. Do they have a force majeure clause? The school should commit to a plan of action, for example, to follow the contract or relax the standards in light of the COVID-19 threat, and communicate it clearly and proactively to parents before it must be enacted.
Schools are considering where and how much they can adjust their calendars, particularly for younger grades where online learning is more challenging. “Given the nature of what is happening, my guess is that courts are going to give schools some benefit of the doubt, but the schools should be taking whatever steps they can to meet needs during closure or plan into June or even some weekend school days to make up the shortfall,” advised Wilson. “The best thing they can do is communicate multiple times over their thinking, the possibilities, and potential timelines for decision-making.”
Also review employee agreements for clauses related to potential school closures. Contracts should contain exceptions for force majeure, and all agreements should clearly delineate expectations regarding telework and the potential need for remote learning and online classrooms in the case of extended closure.
Schools should also review their agreements with third party vendors who supply materials or personnel to the school. It is prudent to reach out to critical vendors such as dining services and security services suppliers or those who supply medical and janitorial materials to understand their preparedness capabilities and employee screening procedures.
Check the school’s general liability insurance for business interruption coverage. Many policies only cover interruptions in which there are direct physical losses to the premises in question. They will not cover closures due to illness, according to Wanglin. Pandemic insurance would cover such closures, but schools are not likely to carry it.#RegulatoryUpdates#Pandemic#CrisisManagement
Questions Independent School Leaders Are Asking About COVID-19 (NBOA)
Coronavirus (COVID-19) Guidance for Schools (NAIS)
Academic Continuity During COVID-19 Closures: A Case Study (NBOA, with additional resources on online learning)
Model Infectious Disease Preparation Checklist (Association of China and Mongolia International Schools)
Coronavirus Resources for Technology Leaders (ATLIS)
Responding to Coronavirus: Considerations for Independent Schools (Venable)
Recent Net Assets news itemsCOVID-19 Updates: Calm in Crisis, Admissions Impacts, Event CancellationsCOVID-19 Forces Classrooms Into the Cloud
NBOA Connect discussions (for members only) Faculty/staff travel survey re: coronavirusQuarantined employees (in the Dedicated HR forum, requires community permissions)
Nowhere to Hide: Best Practices in Crisis Management (July/August 2016)
Independent Schools Prepare for Coronavirus (EMA/NAIS/NBOA/SAIS/TABS webinar summary from early February)
A Considered Response to Coronavirus (CEO Notebook from early February)
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