CDE and CDPH Issue School Reopening Guidance — Local Public Health Officials May Have the Final Word

06.16.2020

On Monday, June 8, 2020, the California Department of Education (“CDE”) issued its much anticipated guidebook for reopening K-12 schools for the 2020-2021 school year. This shortly followed (and incorporated) the June 5, 2020, interim industry guidance for school reopening by the California Department of Public Health (“CDPH”). (Collectively “CDE/CDPH Guidance”).

The CDE/CDPH guidance authorizes schools to reopen as early as June 12, 2020, subject to county health officer approval.

The CDE/CDPH guidance should not be viewed as a mandate. The CDE guidance presents a series of recommendations – not mandates – focused primarily on returning school district/county office academic programs to some level of on-site operation, while addressing related health and safety concerns, including masks, sanitation and social distancing. Likewise, the CDPH guidance does not mandate strict compliance, and instead states that “decisions about following this guidance should be made in collaboration with local health officials and other authorities,” and further states that “implementation of this guidance should be tailored for each setting.”

The CDE/CDPH guidance does not address extracurricular activities and school sports, and states that further guidance on these topics will be issued separately.

This Alert focuses on legal implications arising from the CDE/CDPH guidance with respect to school districts and county offices of education. Our Firm has issued a separate Alert, which addresses the impact of the CDE/CDPH guidance on Special Education. That Alert is located here.

CDE/CDPH Guidance Requires Approval of Local Public Health Officials

As noted above, the CDE/CDPH guidance contains suggestions, not mandates. That guidance, however, also makes clear that school district/county superintendent decisions to reopen are subject to approval of local public health officials, based on their review of epidemiological data. Any reopening decisions must, therefore, be consistent with the applicable local public health order (if any).

There may well be significant variation from county to county and within counties. Some local public health officials may require full compliance with some or all of the recommendations in the CDE/CDPH guidance, while other public health officials may authorize greater flexibility.

While it remains to be seen what requirements local public health officials will impose, in the wake of the CDE/CDPH guidance, several counties have recently amended their county health orders to address school reopening issues. New health orders in Los Angeles, San Diego, Ventura and Santa Barbara Counties, appear to contemplate that schools will reopen in compliance with the CDPH guidance. The specifics of these health orders (which came out over the last few days) are addressed in a separate Alert.

CDE/CDPH Guidance Effectively Allows Non-Essential Workers to Return to On-Site Operations if Authorized by Local Public Health Officials

By allowing school districts and county superintendents to reopen (with authorization from local public health officials) the CDE/CDPH guidance effectively permits school districts and county superintendents who have been authorized to reopen to return previously “non-essential” workers to on-site operations. Such employees may, of course, be permitted to work from home as appropriate, or as otherwise required under the local public health order.

Overview of CDE/CDPH Guidance

The CDE/CDPH guidance – in addition to presenting instructional options and public relations guidance – contains numerous recommendations, including the following:

Establish plans to address positive cases and community surges, which include options to close the district or schools if necessary, and protocols for situations where staff, students, or household members test positive or exhibit symptoms.
Update Injury and Illness Prevention Programs (“IIPP”) to account for coronavirus.
Consider active and passive methods to screen students and staff for coronavirus.
Assess whether and how to allow outsiders/visitors to access campus, including access by vendors, and protocols for community groups requesting to use district facilities.
Develop detailed plans – and provide training – for use of hand washing, hand sanitizers, and Personal Protective Equipment (PPE) by students and staff, including cloth face coverings, masks, or face shields. The type of PPE recommended varies from one situation to the next, and is addressed in detail in the CDE/CDPH guidance.
Maintain social distancing, including maintaining 6‑foot separation for students and staff while on campus, in class, on buses, and on the playground. CDE also recommends consideration of maintaining students in small cohorts, as well as implementation of staggered start/end times and opening new entries to campus.

Legal implications arising from these recommendations are addressed below.

Bargaining Implications

Many of the CDE/CDPH recommendations will require school districts/county superintendents to collectively bargain aspects of their reopening plans. Reopening plans that affect employee work hours, changes to job responsibilities, daily/weekly work schedules, safety and working conditions, and other items within the scope of bargaining, will require that employers notify unions of the expected impacts to working conditions and provide a reasonable opportunity for unions to demand to bargain over those impacts.

For example, CDE guidelines indicate that a reopening plan may require staggering start/end times of the work day, and additional supervision at access points and during recesses and lunch periods to ensure social distancing. A district may consider having classified instructional aides provide this supervision, which would likely require them to work outside of their job description. This district may, therefore, need to bargain language with its classified union permitting instructional aides to work outside of their classification in performing early morning, recess, and noon supervision duties that are normally performed by noon duty assistants or campus safety assistants.

With limited time to negotiate prior to the start of school, school districts/county superintendents should give strong consideration to notifying their bargaining units of reopening plans as soon as possible, so there is at least some opportunity to negotiate school reopening impacts in June, July, and early August before school reopens.

Should these negotiations become protracted, districts/county superintendents are unlikely to be able to complete the impasse and factfinding process prior to the start of school. LEAs that cannot complete negotiations by August will have little choice but to unilaterally implement their reopening plan, while continuing negotiations with the bargaining units during the school year. Unilateral implementation of negotiable decisions has been addressed in prior Alerts (see here and here). Any decisions to implement negotiable changes, without prior agreement, should be made in consultation with legal counsel.

Impacts on Facilities Planning/Facility Use

CDE makes several recommendations related to facilities use.

One unexpected section discusses limiting access to “outside” visitors and groups, including parents. Because parents have certain rights to, for example, observe classes, and current State and most local health and safety orders do not address those rights, any efforts to limit access by parents or other guardians will have to be reconciled accordingly.

Districts will also have to address how and when to reopen their facilities for use by the community through the Civic Center Act (Education Code § 38130 et seq.) and facilities use agreements. School districts will have to consider modifying facilities use protocols depending upon the type of facility requested for use (sports fields compared to multipurpose rooms), cleaning and sanitizing facilities prior to school district use, timing of facilities use to allow sufficient vacancy of the facility prior to cleaning, and costs associated with increased facilities cleaning needs. Facilities use agreements should be reviewed and updated to address these issues as well as considering modifications to insurance coverage requirements and liability waivers, potentially including a release of liability for possible exposure to COVID-19 that could occur as a result of facilities use.

With respect to social distancing, CDE advises LEAs to plan to meet physical distancing standards in school facilities and vehicles with clear definitions for staff and students that accommodate the current standard of 6-foot separation between individuals, yet meet student medical, personal, or support needs. CDE prudently advises LEAs to plan ahead for how to adjust facility use to accommodate individual student medical or personal needs, including those of medically fragile or immune compromised individuals. CDE points to specific recommendations from the California Department of Social Services found here.

With respect to hygiene, CDE advises that agencies make supplies and stations for handwashing and hand sanitation available to staff and students, and supplement supplies with training, so that students and staff have both the opportunity and the experience to maintain hygiene in keeping with CDPH and CDC guidance.

With respect to cleaning practices, CDE points to existing guidance from the CDC and EPA on appropriate cleaning agents and their use, recommending daily cleaning of high touch surfaces, both those touched by numerous people and those used daily by specific individuals.

Impacts on Charter Authorizers and Oversight Agencies

Local educational agencies that are charter authorizers, or that otherwise provide facilities to one or more charter schools, will also need to consider the reopening protocols for the charter schools they oversee or with which they have facility use agreements. This will be particularly important for charter schools that share locations with district programs. Most, if not all, of the same issues that school districts and county offices of education must consider in planning for reopening – including both the educational program and the use of facilities – will also apply to charter schools, and where two separate programs share a site, the means of addressing those various concerns, and coordinating between two independently operated and structured programs, will be that much more complicated.

Issues of particular significance over the next several months (prior to the start of school) are likely to include:

Navigating changes to charter schools’ use of district facilities – particularly for charter schools that are co-located with district programs – including the division of responsibilities and potential revisions to existing agreements. This may necessitate amendments to facility use agreements and/or changes in how co-located programs share the space.
How charter educational programs and operations will need to change in order to keep students and staff safe, and whether such changes are consistent with the charter and/or require a request for material revision.
How charter schools are addressing the fiscal impact of COVID-19 and anticipated changes to the state budget.
COVID-19 will likely also impact any new requests for facilities submitted pursuant to Proposition 39 this fall and will need to be considered when responding to such requests.

We encourage LEAs that authorize and/or provide facilities to charter schools to work closely with legal counsel to determine the issues that may be implicated by their charter school(s)’ reopening, Our office is available to assist in navigating the new health and legal landscape in order to best fulfill charter oversight and facilities duties.

Education Code Waivers Will Be Required

The hybrid instructional models suggested by CDE – which uniformly involve some amount of remote instruction – are difficult or impossible to square with current law applicable to non‑independent study instruction, which: (1) generally provides that students generate average daily attendance only when participating in educational activities under the “immediate supervision and control” of certificated employees of the district/county superintendent; and (2) imposes instructional day and minutes requirements as a condition to receipt of certain apportionment funding.

Districts/county superintendents serving students remotely almost certainly cannot satisfy these requirements. As a result, it is imperative – and we fully expect – that the Legislature or Governor will take action to waive these requirements, or to otherwise clarify conditions to the receipt of apportionment funding in this unique environment.

Personal Protective Equipment

The CDE/CDPH guidance presents detailed recommendations, but does not mandate, wearing of masks, gloves, or other personal protective equipment.

As noted above, however, local public health officials may mandate compliance with CDPH guidance or impose other obligations. The CDPH guidance also indicates that Cal/OSHA “will be developing supplemental guidance to assist education employers in complying with Cal/OSHA’s COVID-19 related standards.”

These provisions make clear that school districts and county superintendents should pay close attention to orders of local public health officials and other agencies (including Cal/OSHA) relative to PPE and safety requirements.

Conclusion

While the CDE/CDPH Guidance contains detailed recommendations, any school reopening plans must be adopted in collaboration with local public health officials.

Please feel free to contact this Alert’s authors or your usual AALRR attorney with any questions regarding this Alert.