With Spring Break around the corner and the recent rise in concerns surrounding the coronavirus, this Legal Update will provide guidance to school districts in handling student and staff travel, in addition to other district operations that may be affected by COVID-19.  This Legal Update is based on currently available information and best practices, and we will continue to keep you updated as additional information becomes available. For your reference, travel alerts and additional information can be accessed at https://www.cdc.gov/ and travel alerts at https://wwwnc.cdc.gov/travel/.

Student Travel

Students who travel to locations identified by the CDC as a Level 2 or Level 3 risk area, or who have potentially been exposed to COVID-19 or other infectious diseases, may be removed from the school setting to prevent an outbreak of the virus at the school. These students may be removed until medically cleared to return to school, consistent with Wisconsin Statute Section 252.21. The statute, which provides further guidance in addressing communicable diseases in schools, reads as follows (in relevant part):

• If a teacher, school nurse, or principal of any school or child care center knows or suspects that a communicable disease is present in the school or center, he or she shall at once notify the local health officer.
• Any teacher, school nurse or principal may send home pupils who are suspected of having a communicable disease or any other disease the department specifies by rule. Any teacher, school nurse or principal who sends a pupil home shall immediately notify the parents of the pupil of the action and the reasons for the action. A teacher who sends a pupil home shall also notify the principal of the action and the reasons for the action.

Depending on the situation, students exposed to family members or other individuals who are in close contact with the students, may also be prohibited from attending school until medically cleared to return. Students, parents/guardians, and district staff should work with the CDC, the local and state Health Departments, and the head of the district’s internal health department for determinations related to student health concerns on a case-by-case basis.

We recommend that school districts provide notice to students and their families requesting advance notice of travel out of the country, on cruises or to any areas currently identified or that become identified as a Level 2 or Level 3 risk area.  Districts may also request notice as soon as possible of potential exposure to COVID-19 or the presentation of symptoms of the virus or other communicable diseases.  Given the daily increase in those identified as having COVID-19, districts should consider whether to require advance notice by students and their families of travel to certain locations within the United States, as well, where COVID-19 infections have been identified. The notice should indicate that students may not be permitted to come to school for a period of time as determined appropriate in consultation with the district’s health department, state/local health departments and CDC recommendations.

School-Sponsored Travel

Given the recent health concerns surrounding COVID-19 and travel, school districts may understandably be concerned about the safety of the students and staff who are scheduled to travel on school-sponsored trips.  School districts sponsoring spring break trips or other types of travel have the right to cancel those trips, in the interest of preventing future outbreaks to the district. Before making a final decision regarding cancellation, however, the cancellation policy in the contracts with the travel companies, permission slips and terms of any applicable travel insurance should be reviewed, and the district may wish to meet with parents, students, and staff to address concerns.  In addition, current travel alerts and safety information should be considered, as well as possible itinerary changes, or other options to minimize the risks without cancelling the trip altogether.

In addition, we strongly recommend districts require students/parents, who go on upcoming school-sponsored trips to locations where COVID-19 is currently present or trips requiring out-of-state or out-of-country travel, sign a waiver and release form, releasing the district from liability in the event of injury, illness, etc. and assuming the additional risk due to the heightened concerns of the spread of the virus. These waivers should include provisions that, for students who voluntarily proceed with the trip, parents will be responsible for any additional costs if a student/family member becomes sick; the student is unable to return as scheduled either due to travel restrictions; or the student/family members are subject to quarantine or suffer any other losses as a result of the travel. In addition, the waiver should provide that if an individual is unable to return at the same time as other trip participants due to illness, the parent/guardian will be responsible for traveling to the location of the student to remain with and care for the student at their own expense.

Although Wisconsin courts tend to not favor waivers and releases, the following should be considered in ensuring an effective waiver and release:

• The language of the release should not be overly broad or all-inclusive. Narrowly specify what liability is being waived.
• The waiver and release should be a separate document, and clearly identified as such.
• The signer should have the opportunity to ask questions and bargain as to the contents of the waiver.

If school-sponsored trips proceed as currently planned, please contact us to ensure appropriate safe guards are in place and to discuss the advisability and specific language of a waiver and release for the upcoming trip.

Staff Travel

School districts may also want to limit exposure of the virus related to staff who engage in personal travel over spring break. Districts may require employees to provide advance notice to the district, as soon as possible, if they will be traveling out of the country, on cruises, to any locations now identified or that become identified as Alert Level 2 or Warning Level 3 areas, or if they have been potentially exposed to COVID-19 or other infectious diseases.  Given the daily increase in those identified as having COVID-19, districts should consider whether to require advance notice by staff of travel to certain locations within the United States, as well, where COVID-19 infections have been identified.  Districts should consult with and follow the recommendations of their state/local health departments, the district’s head of their health department, and the CDC, and may require employees to not return to work or attend district-related events for 14 days or as determined necessary depending on location of travel and current available information regarding potential risks to the health and safety of the school community.  The list and level of warning is very fluid, so employees who plan to travel should regularly check the list to have the most up to date information. In addition, employees may be directed to notify the district immediately if their area of travel is added to the list while they are on the trip. School districts should then follow CDC and state/local health department guidelines upon the employee’s return as noted above.

Additionally, if an employee is traveling for personal reasons, outside of school-related reasons, any time missed from work due to a subsequent quarantine may be excused, but may be unpaid, unless the district allows the use of paid time off or they qualify for a paid medical/sick leave under district policies or state/federal leave.  While these determinations may be made on a case-by-case basis depending on the necessity and location of travel, as well as the risk level prior to and after departure for the trip, districts should try to be consistent in how and whether paid time off use will be permitted.  Keep in mind that, if employees are missing work as a precautionary measure, they may not be eligible for state or federal family medical leave or to use accrued sick leave under the district’s applicable policies, such as if they are not ill, not experiencing symptoms or not under a physician’s care.  However, depending on the circumstances, the district may want to be flexible in allowing the use of paid time off.  It is recommended that FMLA forms should be provided to any employees who are required to or voluntarily stay home, and who are potentially exposed or presenting symptoms of COVID-19, in order for eligibility determinations to be made.  Keep in mind, if employees perform any work for their employer during the period of quarantine, they must be compensated by the district.

School Closures/Board Operations

Under Wisconsin law, the local health department has broad powers as it relates to communicable diseases. Under Wisconsin Statute Section 252.02, the local health department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.  A school district also has discretion to close in case of an emergency or as determined necessary to prevent the spread of communicable diseases.  However, prior to a school closure, the school board, superintendent, and health officials within your district should communicate and consult with your state/local health department to ensure there is a coordinated and informed effort as it relates to any school closures or the cancellation of any other public events.

To be proactive, school districts should consider developing a committee comprised of district officials such as the superintendent, school nurses, and other central office administrators, who can meet to review and develop alternative education plans and communications plans in case of a school closure.

Without an immediate or widespread threat of extreme exposure to COVID-19 at this time, school boards should continue to function as usual. In order to comply with the Wisconsin Open Meetings Law, which requires public access to school board meetings, school boards should not consider closing school board meetings to the public, or consider discontinuing board operations unless there are extenuating circumstances that prevent board meetings from occurring. Even so, the board should only make such a determination after careful consideration of accessibility options and guidance from their state/local health department(s) on closing of public gatherings.

School district should also consider the following practices for board meetings:

• consider whether current policies allow for board members to participate via telephone or video-conferencing, and encourage such participation if a board member is experiencing flu-like symptoms;
• consider providing the general public with an effective means of monitoring the conference, such as through live-streaming;
• provide a large, open space to conduct the meeting, with sufficient space between seats, and provide extra supplies on hand for the public and participants, including sinks with soap, hand sanitizers, tissues, and disposable facemasks (for persons who start having symptoms), in an attempt to decrease the exposure of the virus;
• ensure the space is properly cleaned prior to and after the meeting.

WIAA and Other Public Events

We are continuing to monitor CDC and state/local health department recommendations regarding prevention of the spread of COVID-19 with respect to the Wisconsin Interscholastic Athletic Association (WIAA) and other public events.  To date, the WIAA has not provided any official announcements on the state of athletics in Wisconsin in the wake of COVID-19. However, it has provided general information that will be helpful in any decision making related to the virus, found at https://www.wiaawi.org/Health/Infectious-Disease. When there are scheduled events that are interrupted by the school district or by local/county/state health agencies due to infectious disease, practices and competition will be postponed or cancelled. The games may be postponed and played at a later date, and if the closures are during the WIAA tournament series, the contests will be rescheduled, when possible.

In general, CDC and state/local health department recommendations and protocols to prevent against the spread of COVID-19 should be followed, and we encourage districts to consult with their state/local health departments regarding whether to cancel large group events.  CDC recommendations are found at https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-gatherings-ready-for-covid-19.html.  Included in the CDC guidance is a recommendation that event organizers have extra supplies on hand for event staff and participants, including sinks with soap, hand sanitizers, tissues, and disposable facemasks (for persons who start having symptoms).  Organizers should also consider additional cleaning and spacing participant seating further apart to avoid the risk of transmission during or after the event.

Providing Services to Children with 504 Plans and IEPs

COVID-19 can potentially pose a serious risk to children, especially children with underlying health conditions that make them more susceptible to the virus. In addition, it will be important to consider whether and how to continue to provide services to students with 504 plans and IEPs if they need to remain home, if the school closes or alternative educational plans are put in place such as remote/virtual learning for the student body.  The Department of Education is in the process of updating guidance on this issue and we will provide the guidance as soon as it is available. If questions arise in the meantime, please contact your school attorney to discuss how to address individual student issues.

Additional Resources:

• https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-for-schools.html
• https://dpi.wi.gov/sites/default/files/imce/sspw/pdf/6-steps-for-schools-to-respond-to-coronavirus-guide.pdf
• https://www.dhs.wisconsin.gov/disease/covid-19.htm

If you have any questions, please contact Claire E. Hartley at (262) 364-0260 or chartley@buelowvetter.com, Saveon D. Grenell at (262) 364-0313 or sgrenell@buelowvetter.com, or your Buelow Vetter school law attorney.