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U.S. Department of Education Releases Additional Guidance on COVID-19 Disclosures

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On September 24, 2020, the United States Department of Education released additional guidance related to disclosures of COVID-19 cases within schools. The Q&A reminds schools of the Department’s prior guidance in March of 2020, related to disclosure of student information, and highlights the most common questions related to this topic. This Legal Update will summarize the Department of Education’s new guidance and will provide additional guidance as it relates to the disclosure of student and employee information under Wisconsin and federal laws.

May a school disclose the number of students who have tested positive for COVID-19 to other parents and students without prior written consent?

Both under FERPA and Wisconsin Statute § 118.125, it is permissible to disclose information about students in a non-identifiable form without prior written consent. However, schools should take caution in releasing such information, to ensure that they do so in a way that does not reveal information that, alone or in combination with other information, would allow a person in the school community to identify the students who are absent due to COVID-19. Therefore, if there are only one or two students absent due to COVID-19 in a small school where it would be easy to determine who the student or students are, it may not be appropriate to release the number of students who have COVID-19.

May a school disclose the number of students who have COVID-19 to provide general health data to the public (including the media) without prior written consent?

Again, under FERPA and Wisconsin Statute § 118.125, such disclosures are appropriate, provided the disclosure of such information does not include any personally identifiable information. As noted under the previous question, a school should only make such disclosure if it does not result in identification of the students.

May a school identify a particular student who has COVID-19 to parents and students in the school community without prior written consent?

Typically, it is appropriate to notify close contacts or other parents or students that an individual has tested positive for COVID-19, without disclosing the identity of the individual. The Department notes a few limited situations where it may be appropriate to identify the particular student without consent, if necessary to protect the health of others and take necessary precautions (i.e. close contact with athletes on sports teams, close contact with high-risk students, etc.), but these determinations should be made on a case-by-case basis in consultation with legal counsel and your local health department.

May a school disclose the identity of students who have COVID-19 to the local health department without prior written consent?

A school may identify students who have contracted COVID-19 to the local health department without prior written consent under the health and safety emergency exception contained in FERPA. Public health department officials are typically considered “appropriate parties” by an educational agency or institution under FERPA’s health or safety emergency exception to prior written consent. School officials should document the disclosure of student information under this exception when used.

Additionally, under Wisconsin Statute § 252.21, if a teacher, school nurse, or principal of a school knows or suspects that COVID-19 is present in the school, he or she must notify the local health officer.

May a school disclose the identity of a student with COVID-19 to a teacher or other school official without prior written consent?

In these instances, a student’s individual teacher is permitted to know the identity of the student under both the school official exception of FERPA and Wisconsin Statute § 118.125(2)(d) where the teacher requires such information perform his or her duties in coordinating instruction for the student and implementing appropriate safety measures in his or her classroom. Although individual teachers would get to know the student’s identity in these instances, they would not get to re-disclose the information to other staff members in the school or to others outside of the school community.

Although other school personnel such as bus drivers or custodians are not school officials required to hold a license under Wisconsin Statute 118.125(2)(d), such employees may, at the discretion of a particular school, be designated as school officials under the statute and FERPA’s school official exception. These school employees would only be permitted to know the identities of students with COVID-19 if they had a legitimate educational interest in the record. Safety interests may be considered legitimate educational interests in these instances.

May a school identify a particular teacher or other school official as having COVID-19?

FERPA does not apply to disclosures of employee or school official information, although there are other laws and considerations that may be applicable in these instances.

The EEOC has provided guidance noting that although the Americans with Disabilities Act protects the confidentiality of employee medical information, the fact that an employee has COVID-19 does not prevent a manager or supervisor from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities. Additionally, both the ADA and HIPAA permit employers to disclose such information to a public health authority that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability. Therefore, the identity of any teacher or other school employee with COVID-19 may be disclosed to appropriate school officials and public health authorities, but the employee’s identity should not be further disclosed by those individuals. The ADA and HIPAA do not permit the school to identify employees with COVID-19 to students or other staff members, but permit the school to provide notice to close contacts or other individuals using generic descriptors without revealing the school employee’s identity in such a way as to prevent identification of the employee who tested positive.

Because identifying individuals who have contracted COVID-19 is important for contact tracing purposes and slowing the spread of COVID-19, when considering whether to share information regarding such students or employees beyond disclosures to necessary school officials or the local health department, it is best to consult legal counsel and the local health department.

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