“An Ounce of Prevention, is Worth a Pound of Cure:” Required Staff Trainings

Ahh, the joys of summer break.  Nothing is sweeter to administrators’ ears than the silence of the school building in summer.  Before you turn on your autoresponder, blend up a pitcher of pina coladas and head to the beach for the summer, now is an excellent time to review mandatory and recommended staff trainings and place them on the district’s calendar for when your staff returns this fall. 

MANDATORY TRAININGS

Title IX.  As of August 14, 2020, the members of your Title IX Team (i.e., Title IX Coordinator, Investigator, Decision-Maker, Appellate Decision-Maker, and Informal Resolution Facilitator) must all receive specific Title IX training.  If that hasn’t been completed—or if you have a new member to your Title IX Team who has not received that training—that training must occur as soon as possible.  As you have most likely heard us say before, we strongly recommend that all district employees and board members also receive basic Title IX training, with an emphasis on the legal definitions of sexual harassment and how to report it to the appropriate people.  We anticipate the new federal regulations will require ALL staff receive training.  While you are enjoying your well-deserved summer break, the KSB attorneys will monitor the Title IX situation and will let everyone know what the final regulations require when they are published.   

Child Find Obligations/Section 504/MTSS/PBIS.  The IDEA and South Dakota Administrative Rules require training for “appropriate” staff to be able to carry out the district’s “child find” obligations under state and federal law.  These obligations also apply to Section 504.  Any presentation about MTSS and PBIS should also remind staff of ongoing child find obligations regardless of the tiered intervention system your district uses.

Suicide Awareness and Prevention. All teachers, administrators, and other educational professions must receive one hour of suicide awareness and prevention training in order to be issued an initial certificate and a renewal certificate as required by SDCL 13-42-71.

HIGHLY RECOMMENDED TRAININGS

Sex Harassment and Discrimination. Staff should, at a minimum, know where to locate your policy and handbook provisions on antidiscrimination based on sex.  This includes your sex harassment policy, complaint procedure, and grievance procedure (for certified staff).  They should also understand who your Title IX coordinator is and how that person can be contacted.  That will be in your nondiscrimination notices, but reviewing it with staff is a good idea.  Ideally, you would review prohibited conduct.

Section 504 and ADA.  Staff have a right to be accommodated if they have a disability.  The school must provide reasonable accommodations to allow the employee to perform the essential functions of their positions.  You should, at a minimum, cover your process for staff requesting accommodations, reporting workplace injuries, and your complaint and grievance procedures in the context of a staff member with a disability.  

Mandatory Child Abuse Reporting.  South Dakota statute 26-8A-3 requires teachers and school counselors to report child abuse when the employee “who has reasonable cause to suspect that a child under the age of eighteen has been abused or neglected.”  You should train on this obligation and on your district’s mandatory reporting policy and procedures.

Restraint and Seclusion.  Under SDCL 13-32-20, each district must have a restraint and seclusion policy.  We recommend reviewing it and your practices with your staff.  

Professionalism and SD Administrative Rule Chapter 24:08:03.  You should review your board’s expectations for professionalism by way of policies such as appropriate relationships, technology use, and others.  This should include a review of certified staff conduct rules laid out in South Dakota Administrative Rules Code of Professional Ethics.  Ideally staff will certify that they have read Chapter 24:08:03 each year.

STUDENT ASSEMBLIES

Digital Citizenship Assembly (AKA “Digcit”).  The calendars are already filling up for the fall.  We recommend reaching out to book your student digcit assemblies now.  As a quick overview, Digcit is an hour-long assembly focused on educating students about sexting, inappropriate pictures, cyberbullying and the related consequences, both school based and criminal.  All assemblies are sprinkled with the usual KSB sass and humor.  Typically, the sessions are separated into middle school or junior high and high school.

UPCOMING SUMMER SPECIAL EDUCATION TRAINING 

If you just can’t get enough special education training, there is an excellent national conference close to home this summer.  The Midwest Educational Leadership Conference will be held June 19-21 in beautiful Breckenridge, Colorado.  The speakers include KSB School Law’s own Karen Haase.  If you would like more information or to sign up, just click here.  

If you have any questions about trainings or would like to schedule the KSB crew to conduct a staff in-service or Digcit, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.    

“An Ounce of Prevention, is Worth a Pound of Cure:” Required Staff Trainings

Ahh, the joys of summer break.  Nothing is sweeter to administrators’ ears than the silence of the school building in summer.  Before you turn on your autoresponder, blend up a pitcher of pina coladas and head to the beach for the summer, now is an excellent time to review mandatory and recommended staff trainings and place them on the district’s calendar for when your staff returns this fall. 

MANDATORY TRAININGS

Dating Violence.  Schools must provide dating violence training to staff deemed appropriate by a school district's administration.  The dating violence training must include, but is not limited to, basic awareness of dating violence, warning signs of dating violence, and the school district's dating violence policy.  Neb. Rev. Stat. § 79-2,141.  NDE’s website has good resources to use for this training.

Concussion Awareness.  The school must make available training approved by the chief medical officer on how to recognize the symptoms of a concussion or brain injury and how to seek proper medical treatment for a concussion or brain injury to all coaches of school athletic teams.  The NSAA used to require this training annually, but that has never been required by the statute.  The NSAA issued an “approved ruling” which now allows the training every 3 years, with training in the first year for new sponsors.

 Behavioral and Mental Health.  LB 705 changes the suicide awareness training to Behavioral and Mental Health Training.  It will require “all public school employees who interact with students and any other appropriate personnel” as determined by the superintendent to receive at least one hour of behavioral and mental health training with a focus on suicide awareness and prevention training each year.  The change is not effective until September 10, 2023. 

Evaluator Training (Evaluating Administrators Only). All evaluators must be “trained to use the evaluation system used in the district.”  This would include all evaluators (superintendents, principals, etc.), but there is an exception for boards of education that evaluate the superintendent.  NDE Rule 10 § 007.06(B).

Pupil Transportation Vehicle Drivers/Safe Pupil Transportation Plan.   Districts must annually provide a 2-hour training for individuals who drive pupil transportation vehicles required by Rule 91.  Additionally, Districts must provide one-time training to pupil transportation vehicle drivers of small vehicles on activity trips prior to driving.  

Training for All School Resource Officers and All Administrators in Buildings with SROs.  Section 79-2704 of the Nebraska statutes requires each school resource officer or security guard and at least one administrator in each building which has an SRO assigned to it to “attend a minimum of twenty hours of training focused on school-based law enforcement, including, but not limited to, coursework focused on school law, student rights, understanding special needs students and students with disabilities, conflict de-escalation techniques, ethics for school resource officers, teenage brain development, adolescent behavior, implicit bias training, diversity and cultural awareness, trauma-informed responses, and preventing violence in school settings.”  If your SRO or building administrator have not received this state-mandated training, then this summer is the perfect time to get that completed.  Here is a link to KSB’s SRO training.

Title IX.  As of August 14, 2020, the members of your Title IX Team (i.e., Title IX Coordinator, Investigator, Decision-Maker, Appellate Decision-Maker, and Informal Resolution Facilitator) must all receive specific Title IX training.  If that hasn’t been completed—or if you have a new member to your Title IX Team who has not received that training—that training must occur as soon as possible.  As you have most likely heard us say before, we strongly recommend that all district employees and board members also receive basic Title IX training, with an emphasis on the legal definitions of sexual harassment and how to report it to the appropriate people.  We anticipate the new federal regulations will require ALL staff to receive training.  While you are enjoying your well-deserved summer break, the KSB attorneys will monitor the Title IX situation and will let everyone know what the final regulations require when they are published. 

STUDENT ASSEMBLIES

Digital Citizenship Assembly (AKA “Digcit”).  The calendars are already filling up for the fall.  We recommend reaching out to book your student digcit assemblies now.  As a quick overview, Digcit is an hour-long assembly focused on educating students about sexting, inappropriate pictures, cyberbullying and the related consequences, both school based and criminal.  All assemblies are sprinkled with the usual KSB sass and humor.  Typically, the sessions are separated into middle school or junior high and high school.  

UPCOMING SUMMER SPECIAL EDUCATION TRAINING 

If you just can’t get enough special education training, there is an excellent national conference close to home this summer.  The Midwest Educational Leadership Conference will be held June 19-21 in beautiful Breckenridge, Colorado.  The speakers include KSB School Law’s own Karen Haase.  If you would like more information or to sign up, just click here.  

If you have any questions about trainings or would like to schedule the KSB crew to conduct a staff in-service or Digcit, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.    

THE POLICIES ARE COMING! THE POLICIES ARE COMING! THE POLICIES ARE…COMING?

Well 2022-23 was a heck of a ride, amirite?  The “end” of a novel pandemic; a “novel” Unicameral session; real angry folks all over the place; and oh yeah, some herculean efforts to provide an awesome education in the middle of a staffing crisis.  First and foremost, congrats and great work!

You’ve been asking about policy updates, and we finally got some clarity.  With the passage of LB 705 (the education Christmas tree bill), most of the state-level policy updates are becoming clearer.

Here are a few key policy changes that LB 705 will require:

1. Major changes to student discipline policies and practices.  There are new timelines across the process, hearing officer challenges, and prohibitions on suspension of younger students.  Now don’t you fret Boba Fett--KSB plans to offer training for administrators and hearing officers this summer, along with new discipline forms, to get you ready for the new law.

2. Major changes to option enrollment, particularly addressing option enrollment for students receiving special education services.

3. Major changes to part-time enrollment and participation in extracurricular activities.

4. FAFSA, youth organizations and access, behavior intervention training, and quite a bit more.

If you are a KSB policy service subscriber, here is our plan for getting you the updated policies you will need after the legislative session ends: 

1. June 2: KSB will release our policy update packet.

2. June 7: KSB will hold our annual policy updates webinar (link sent later, and it will be recorded and shared for those who can’t make it live).

3. June 12: Likely board meeting date for most schools.

4. June 16 (or before): KSB plans to release our handbook updates

Before we close the book on the 2023 policy updates, here’s what could shake things up:

1. If the Unicameral moves any other education-impacting bills through in the last few days, we will adjust but still plan to get out everything we can by that first week of June.  July meetings are already packed with hearings and reviews, so we felt strongly about giving you the option of getting as much updating done in June as possible.

2. The U.S. Department of Education (USDOE) is expected to release updated Title IX regulations any day now.  They’ve promised May 2023, but they’ve been late before.  If you remember 2020 (LOL) they released regulations in May effective in August.  The newest regs as proposed would require training for ALL staff, so if that sticks, the effective date will greatly impact additional policy updates and training schedules.  We plan to do on-demand training again, if needed.

3. The USDOE just finished up a 30-day public comment period on its proposed gender participation in athletics rule under Title IX.  Reminder--the proposed rule would ban categorical restrictions but permit schools to make participation decisions using important educational objectives such as competitive fairness and prevention of injury.  If this rule becomes final and effective, it will require policy changes at some point.

4. Oh, and the USDOE is also working on new Section 504 and FERPA regulations.  Let’s hope they have enough on their plates for 23-24.

This is certainly enough to chew on for now, but if you have any questions about the policy updates for this year, drop us a line at ksb@ksbschoollaw.com or give us a shout at 402-804-8000.

I Need Money, Not a Job: Hiring High School Workers for the Summer

Detasseling.  Babysitting.  Bag boy at the local grocery store.  We all remember our first jobs.  The glory of 5:30 AM bus rides to wet cornfields to detassel corn.  A true midwest gift to teenagers 13 through 18 trying to earn a few bucks.  But can a school district be a student’s first summer employment experience?  Recently, we have received an uptick in calls from school administrators who are looking to fill temporary custodial positions with high school workers during the summer months.  High school students may be an excellent solution for schools during the three months of summer.  However, there are certain considerations Nebraska school administrators should review when hiring high school workers.

Minimum Wage

Nebraska law carves out an exception to the state minimum wage for school districts.  Specifically, Neb. Stat. § 48-1202(2) states: "Employer . . . shall not include the United States, the state, or any political subdivision thereof . . .."  This language means that school districts are excluded from the category of employers to which the state minimum wage applies and are not subject to the Wage and Hour Act.  Instead, a school is only required to comply with the federal minimum wage requirements.  The federal minimum wage is currently $7.25 per hour.  While high school students may be unwilling to work for $7.25 an hour, it is legally permissible.

Employment Certificate for Minors 14 and 15 Years of Age

The Nebraska Department of Labor requires a form be completed by a school administrator regarding any minors who are 14 and 15 years of age and seeking employment in any workplace.  The form is available here.  If the school district hires a 14- or 15-year old, the Department of Labor also requires Form 110 for employers which should be posted in the area the minor will be working to alert supervisors of the hour limitations.  Fourteen and 15 year olds are limited to working no more than 40 hours in a non-school week.  Additionally, their work cannot begin before 7:00 AM nor last beyond 9:00 PM. 

Driving “On-The-Job” 

Minors under 17 may not drive on public roadways as part of the minor’s job.  A 17 year old may drive on public roadways as part of the 17 year old’s job if the following requirements are met: 1) the driving occurs during daylight hours, 2) the 17 year old holds a valid driver’s license, 3) the driver has completed a driver’s education course, 4) the driver has no record of any moving violation at the time of hire, 5) the vehicle does not exceed 6,000 pounds gross vehicle weight, and 6) the vehicle has seat belts for the driver.  Additionally, driving may not include driving more than a 30 mile radius beyond the work site and transporting more than three passengers.

Lawn Mowing

One area we often see schools use minors for is mowing the school grounds.  Be aware that the federal Fair Labor Standards Act limits 14 and 15 year olds from certain activities.  For example, 14 and 15 year olds may help with “clean-up work and grounds maintenance,” but they may not “use power-driven mowers, cutters, and trimmers.”  See a complete list of limitations here.  If your high school workers are 16 or older, the limitations for work are substantially fewer.

Conclusion  

If you have any questions about hiring minors, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

I Need Money, Not a Job: Hiring High School Workers for the Summer

Detasseling.  Babysitting.  Picking Rocks.  Bag boy at the local grocery store.  Working as summer help at the school?  We all remember our first jobs.  The glory of 5:30 AM bus rides to wet cornfields to detassel corn.  A true midwest gift to teenagers 13 through 18 trying to earn a few bucks.  Recently, we have received an uptick in calls from school administrators who are looking to fill temporary custodial positions with high school workers during the summer months.  High school students may be an excellent solution for schools during the three months of summer.  However, there are certain considerations South Dakota school administrators should review when hiring high school workers.

Minimum Age and Wage

South Dakota law provides that no minor under the age of 14 may be employed.  SDCL 60-12-1.  Additionally, minors who are 14 and 15 are limited to working no more than eight hours a day and no more than forty hours a week.  SDCL 60-12-2.  School districts are also required to pay minimum wages as established by SDCL 60-11-3.  The 2023 South Dakota minimum wage is $10.80 per hour.

Driving “On-The-Job” 

Minors under 17 may not drive on public roadways as part of the minor’s job.  A 17 year old may drive on public roadways as part of the 17 year old’s job if the following requirements are met: 1) the driving occurs during daylight hours, 2) the 17 year old holds a valid driver’s license, 3) the driver has completed a driver’s education course, 4) the driver has no record of any moving violation at the time of hire, 5) the vehicle does not exceed 6,000 pounds gross vehicle weight, and 6) the vehicle has seat belts for the driver.  Additionally, driving may not include driving more than a 30 mile radius beyond the work site and transporting more than three passengers.

Lawn Mowing

One area we often see schools use minors for is mowing the school grounds.  Be aware that the FLSA limits 14 and 15 year olds from certain activities.  For example, 14 and 15 year olds may help with “clean-up work and grounds maintenance,” but they may not “use power-driven mowers, cutters, and trimmers.”  See a complete list of limitations here.  If your high school workers are 16 or older, the limitations for work are substantially removed.

Conclusion  

If you have any questions about hiring minors, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

On Our Radar: New Federal Legislation for Nursing Mothers

“And pump it (louder), pump it (louder), pump it (louder) . . ..”  Now that I have you all singing the famous 2009 Black Eyed Peas song Pump It Harder (released the same year Jordan finished his freshman year of high school . . . let’s think about that for a minute), it is time to dive into the newest federal legislation on our KSB radar, the “Providing Urgent Maternal Protections for Nursing Mothers Act” or (shortened slightly but still a mouthful) the “PUMP for Nursing Mothers Act.”  This legislation was signed into law by President Biden on December 29, 2022.  The PUMP for Nursing Mothers Act expands on current legislation to provide workplace protections to breastfeeding employees.  Presently, the FLSA requires employers to provide nursing mothers reasonable break time to express breast milk after the birth of a child for up to one year after childbirth.  Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk.  Also, employers may not deny a covered employee a needed break to pump.  

The PUMP for Nursing Mothers Act expands the FLSA requirement to cover salaried employees such as teachers who previously were exempt from these requirements.  Additionally, the time an employee spends expressing breast milk must be considered hours worked if the employee is also working.  Employees who use a break to pump are not required to be paid for that time.  If an employer fails to comply, the employee can seek monetary remedies against the employer such as back wages, liquidated damages, and attorney’s fees.    

Here are the most common compliance questions we receive from school districts:

Is a private bathroom a permissible location for the employee to pump?

Answer: No. Even if the bathroom is private, it does not comply with the requirements of the FLSA which explicitly provide the location must be “a place, other than a bathroom.”

Do we have to pay a staff member who uses break time to express breast milk?

Answer: No, if the employee is completely relieved from duty. If the employee is not completely relieved from duty, the employee must be paid.  For example, if you have a paraprofessional who corrects papers while pumping breast milk, she must be compensated for the time spent pumping and doing the work at the same time.

What is a reasonable break time for an employee to express milk? I have a custodian who takes three 40 minute breaks a day to pump.

Answer: The DOL gives wide latitude for nursing mothers.  Specifically, it states “the frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child.”  We discourage schools from placing arbitrary time limits on pumping breaks for nursing mothers. 

Is there still an exception for schools who employ less than 50 employees? 

Answer: The FLSA carves out an exception for employers with less than 50 employees if such requirements would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  We recommend contacting your school attorney prior to making a decision to deny a pumping request.

If you have any questions about the FLSA or the PUMP for Nursing Mothers Act, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

The Popular Question of the Week: Are classified staff eligible for unemployment compensation during the summer?

Working at KSB School Law is always an adventure.  While the popular question last week was not “Where are we going to lunch?” (ahem Jordan), “Who is creating the powerpoint for our next presentation?” (looking at you Tyler), or “Which Disney movie is the greatest of all time?” (Sara, guilty as charged, but please send me your votes because we all know Emperor's New Groove wins), the most popular question we fielded in our office was “Are classified staff eligible for unemployment compensation in the summer?”  As the calendar inches closer to summer, business managers and superintendents are addressing unemployment compensation and eligibility questions from substitute teachers and classified staff.  As long as certain conditions are met, the answer is “no” in both Nebraska and South Dakota.

Nebraska law provides that school district employees are disqualified from receiving unemployment benefits for periods of unemployment which fall between regular school terms if they performed services for a school district during the first term and have a contract or a reasonable assurance of employment to perform similar services on comparable terms for any school district during the second term.  NEB. REV. STAT. § 48-628.06.  Similarly, South Dakota law states “With respect to services performed in any other capacity for an educational institution, no benefits may be paid to an individual on the basis of the individual's services for any week that commences between two successive academic years or terms if the individual performs the services in the first academic year or term and there is a reasonable assurance that the individual will perform the services in the second one.”  SDCL 61-6-15.

Both states specifically address an employee’s ability to have “reasonable assurance” of continued employment.  To guard against unemployment compensation claims, we recommend districts issue a “reasonable assurance” form to substitute teachers and classified staff.  This form gives employees an assurance of the school district's intention to continue their employment the following school year without guaranteeing them re-employment.  This form can be used as evidence in unemployment compensation cases of the district’s intent to continue employment in the subsequent school year. 

If you have any questions about unemployment claims or would like a sample reasonable assurance form, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Bullying and Special Education: What is the Impact on FAPE?

As school administrators, you likely have been involved with many claims of “bullying” within your district.  Bullying has regularly been a hot topic within the education world for the past decade.  While bullying is an issue that has the potential to impact all students, data suggests special education students face bullying at higher incident rates than general education students.  For example, children with disabilities are two to three times more likely to be bullied than their nondisabled peers.  Disabilities: Insights from Across Fields and Around the World; Marshall, Kendall, Banks & Gover (Eds.), 2009. 

School districts have both legal and educational obligations to these students.  In a 2014 Dear Colleague Letter, OCR stated that “bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504.”  Office of Civil Rights, Dear Colleague Letter, U.S. Department of Education (October 21, 2014).  OCR goes on to provide an actionable response for the school which includes convening “the IEP team or the Section 504 team to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the student is no longer receiving FAPE.”  Id.        

What steps should a district follow if a bullying complaint is submitted by a student on an IEP or Section 504 plan?  First, the IEP or 504 team must determine whether the effects of bullying have adversely affected the student’s receipt of FAPE.  OCR recommends considering indications such as “a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in missed classes or sessions of Section 504 services.”   Id.  If the team determines there are no adverse effects due to the bullying, the team does not need to revise the student’s plan.

Alternatively, if the team determines the bullying has adversely affected the student’s receipt of FAPE, the team must identify additional supports the student needs in order to continue receiving FAPE.  The plan should be revised, and the amended IEP or 504 plan should be distributed to the appropriate staff and the parents.  In both scenarios, the team should issue a prior written notice explaining the basis for its decision.

School districts can also be proactive in order to avoid circumstances that may lead to bullying.  For example, school districts should train staff on the signs of bullying unique to students with disabilities.  Additionally, schools should appropriately respond to and document allegations of bullying.  Lastly, consider implementing social skills training as a tool for students with disabilities. 

If you have any questions about special education or Section 504, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.  

Why Are You So Obsessed With Me? Application of “Sunshine Laws” to Local School Boards

“So oh oh, so oh oh,” sings Bobby.  O wait, you are here for a blog post and not a visual reminder of what Bobby sings every day on his commute?  Just as the infamous Mariah Carey belts out these lines in her classic hit, board members might be feeling this pressure from public scrutiny lately.  Part of the scrutiny stems from state “Sunshine  laws” (like the Nebraska Open Meetings Act and the South Dakota open meetings laws) which inherently (and with good public policy reasoning) safeguard the public’s access to meetings and right to information.  Here are a few common questions and areas of concern which lead to potential open meetings violations.

1. Question: I am the superintendent.  Can I send an e-mail to all the board members simultaneously without a violation?

Answer: This makes us nervous!   Under the Nebraska Open Meetings Act, a meeting is defined as “all regular, special, or called meetings, formal or informal, of any public body for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body.”   Neb. Rev. Stat. § 84-1409.  Similarly, South Dakota law defines an official meeting of a public body to be “any meeting of a quorum of a public body at which official business of the public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.”  SDCL 1-25-1.  If a board member hits “reply all” to an e-mail message, a violation of the open meetings law almost certainly occurred.  If a superintendent would like to send an email to all of the board members, the better practice is for the superintendent to send an email to himself or herself with the board members blind copied (BCC’d) on the email so as to avoid the dreaded “Reply All.”

2. Question: I am the board president.  Are there ramifications if I text another board member during a board meeting? 

Answer: Yes.  This is a violation of open meetings laws.  Board members cannot text each other during the school board meeting about school business.  The same would be true about any other form of communication such as social media.  

3. Question: I am the board president.  What limits, if any, can I place on public comment?

Answer: In Nebraska, the public is guaranteed the right to attend and speak at meetings of a public body.  Neb. Rev. Stat. § 84-1412.  The right of the public to provide input may be limited or prohibited at certain meetings so long as it is not forbidden at all meetings, and the public body may require a member of the public to identify themselves as a condition to addressing the body.  The Nebraska Attorney General has provided guidance that allowing public comment at least quarterly is sufficient to comply with the Act.  

In South Dakota, the public body is required to reserve time for public comment at regularly scheduled meetings.  SDCL § 1-25-1.  The public body may exercise discretion in limiting public comment but may not eliminate any public comment.  Senate Bill 162 which was signed by the Governor in February 2023 will change the law to require public comment at every official meeting with several exceptions.  

Reasonable and necessary boundaries can be placed on public comment in both Nebraska and South Dakota.  For example, uniform time limits can be placed on speakers such as two or three minutes per speaker.  Additionally, a board president has the discretion to stop speech or other conduct that the board president reasonably perceives to be or imminently threatens to cause a disruption of the orderly and fair progress of the meeting.  Similarly, swearing or profanity can be prohibited. 

4. Question: I am a board president.  Can I limit public comment criticizing school officials? 

Answer: In an effort to protect the reputation, privacy, and due process rights of school officials and employees, some school boards have adopted policies or practices of prohibiting citizens from publicly criticizing school officials or employees in open school board meetings.  These policies are typically deemed unlawful by the courts.  Therefore, citizens who speak critically of school employees must be allowed to do so unless their comments, coupled with other behavior, clearly threaten to disrupt the meeting.  To put it simply, each time the board provides the public the opportunity for public comment, it must permit the public to provide comment on any subject.  

If you have any questions about open meetings laws, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

In Like a Lion, Out Like a Lamb

The snow is melting, the birds are chirping, and March has arrived.  As the popular saying goes, “March comes in like a lion and out like a lamb.”  Just as the weather in March can oscillate from snow to sunshine, so can the adventures and challenges that walk into a Superintendent or Business Manager’s office.  One area of concern our firm is seeing lately is the lack of ADA-compliant job descriptions.  Many of you are in the process of renewing or issuing employment contracts or renewal agreements which makes this a great time to review job descriptions.  Schools should not wait until they receive a request for an accommodation–or worse, yet, a lawsuit–before developing or reviewing job descriptions. 

Although job descriptions are not required by either state or federal law, they are a key component of ADA compliance.  If you have well-drafted job descriptions, they can protect your school district from claims of disability discrimination.  That is because a well-crafted job description will include a list of “essential functions.”  Essential functions “are those functions that the individual who holds or desires the position must be able to perform unaided or with the assistance of a reasonable accommodation.”  Essential job functions are crucial to 1) determining if a potential employee can perform the essential functions of the job, 2) defending the District from any disability discrimination claims, and 3) requesting medical certification under the Family and Medical Leave Act. 

Our Recommendations.  Spring is the perfect time for schools to update job descriptions.  Even if your district has them in a file somewhere (possibly collecting dust), positions evolve over time (and attorneys learn how to draft more specific lists of “essential functions.”)   After updating your job descriptions, we recommend that you share them with employees.  Each employee should sign the job description to attest to receiving the description and indicating the employee can perform the essential functions of the job.  Now is an opportune time to have staff review and sign for receipt of job descriptions.  When you issue contracts and work agreements to staff, include a copy of their job description for review.  We do not recommend job descriptions be included in board policy.  

If you have any questions about drafting job descriptions, would like assistance with the job analysis process, or would like sample job descriptions, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

A Rose by Any Other Name ...

Shakespeare could have been talking about military leave when he asked:

What's in a name? That which we call a rose 

By any other name would smell as sweet;

 Juliet argues that it does not matter that Romeo is from a rival family; what we call something does not affect what it really is. Romeo and Juliet is a tragedy, but your understanding of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not have to be. This bit of prose reminds us that regardless of how a type of paid leave is categorized the law seeks to protect military members from workplace discrimination based on military service. 

As a reminder, USERRA protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian jobs following a period of uniformed service.  Within the last two years, Courts have consistently expanded the interpretation of USERRA in regard to paid military leave. Based on this new trend of case law, we can determine when a request for paid military leave for short-term assigned duties; such as guard duty, drill, or training, should be treated as a request for any other type of paid leave by analyzing the law. 

 The USERRA requires an employer to provide pay and other benefits to a service member during periods of leave necessitated by military service to the same extent as it would provide a similarly situated employee pay and benefits during comparable periods.  White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021).  See also, Travers v. Fed. Express Corp., 8 F.4th 198, 209 (3d Cir. 2021); Won v. Amazon.com, Inc., 2022 U.S. Dist. LEXIS 149208 (E.D.N.Y. Aug. 19, 2022.)  

 The Department of Labor specified three factors to be considered when determining if two types of leave are comparable:

1.   The duration of the leave

2.   The purpose of the leave.

3.   The ability of the employee to choose when to take the leave. 

Imagine that an army reservist, who is also an employee in your district, is notified that they must report for training for two days for training the following month. Are you obligated to pay them for that leave?

It is up to the employee to demonstrate the leave they are requesting is comparable to a type of leave offered to employees for non-military purposes. When considering the request, the district should first look at the most important element; duration of the leave requested. If employees have access to paid jury duty leave for two days, then a request for paid military leave for the same duration of time would be comparable. Courts have also found bereavement leave to be comparable. Next, the purpose of the leave is considered. If the employee indicates that the purpose for the military leave is part of their civic duty, much like jury duty, it is likely that the purpose would be found comparable. The employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. 20 C.F.R. § 1002.150 (2023). 

 Finally, the ability of the employee to choose when to take leave is analyzed. Though signing up to serve in the armed forces is voluntary, the courts consider only whether the timing of the leave is under the employee’s control. The courts do not look at the voluntary nature of participation in the armed services itself. Once commitment to military service is made, it is the employee’s lack of choice in when they take the necessary leave that weighs in favor of being paid for their requested leave.  

 Conclusion: This relatively new clarification of USERRA might have you wondering if paid military leave is “to be or not to be.” In light of the requirements of the USERRA, school districts may wish to reconsider the extent to which they offer paid leave that would be considered comparable to military leave, or whether they would alternatively offer leave that entitles the employee to differential pay. We recommend reviewing your current USERRA policies and also the types of paid leave offered by your District. 

If you have any questions about the USERRA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

“Houston, We May Have a Problem . . . With Your Partial Dock Days”

Just as the astronauts in the classic 1995 film Apollo 13 devise a cunning strategy to return Apollo 13 to Earth, business managers and bookkeepers are tasked with the mission of navigating FLSA compliance and employee leave.  Both missions are fraught with challenges.  Under the FLSA, an exempt employee’s salary is not subject to reduction because of variations in quality or quantity of the work performed.  Teachers, for example, are exempt under the FLSA if their primary duty is teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment.  

The FLSA carves out several exceptions for the prohibition against deductions from pay for exempt employees.  For example, deductions may be made for exempt employees who are absent for one or more full days for personal reasons other than sickness or disability.  Additionally, exempt employees do not need to be paid for any workweek in which the exempt employee does not perform any work.  If the exempt employee is taking unpaid leave under the FMLA, the District is also not required to pay the full salary for weeks the employee is absent.   

You may be thinking “wait, does this mean partial day contract deductions or dock days are impermissible under the FLSA?”  Correct.  The FLSA views such partial day deductions as an indication the employee should be non-exempt and subject to overtime considerations, etc.  If an exempt employee has exhausted all sick and personal leave and is absent for less than a day, a business manager or bookkeeper is not allowed to contract deduct or dock the employee’s salary for less than a full day.  Partial day deductions should not be made from an exempt employee’s salary when the employee misses less than a full workday and does not have accrued leave available.  The FLSA contains a regulatory “window of correction” which allows an employer, such as a school district, to restore the affected employees’ exemptions under the FLSA by reimbursing the employee his or her lost wages and promising to comply with the salary basis regulation in the future.  

If you have any questions about the FLSA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Taking the “FML” out of the FMLA

Stuff happens.  In our office, there are countless ways life might come before work.  While seeking FMLA leave for a serious health condition, Karen was discovered through surveillance shopping for shoes and having a wonderful time.  Is this problematic?  What about Bobby posting videos of himself on Facebook drinking and dancing at a local bar while claiming FMLA leave for his “bad back?” 

Part 5: May the Odds Be Ever in Your Favor

Just as you thought the FMLA series was a bad dream from 2022, we are back for more!  As a refresher, Part-1 discussed FMLA basics and the type of family and health events that trigger FMLA eligibility.  Part-2 focused on employer notice obligations and special FMLA rules for instructional employees at schools.  Part-3 focused on the mechanics of FMLA leave. Part-4 addressed special school rules for instructional employees and laid out some common scenarios a school might encounter.  Today’s installment discusses a recent U.S. Department of Labor’s Wage and Hour Division opinion regarding FMLA leave.  May the odds be ever in your favor as you navigate the impact this opinion has on FMLA leave calculation. 

Calculating Leave.  When calculating FMLA leave, federal law uses “workweek” as the basis for leave entitlement.  As a reminder, employees may use FMLA leave on an intermittent or reduced schedule leave basis in periods of weeks, days, hours, or smaller increments based on the shortest period of time the employer uses for other forms of leave provided the leave is not greater than one hour.  However, this is generally only permitted when necessary based on the serious health condition and when deemed necessary by the employee’s applicable health care professional.  Additionally, if an employee is normally required to work overtime, the FMLA provides that an employee with an FMLA-qualifying health condition may count FMLA-protected leave towards the overtime hours.  What does this mean practically?  A school employee, such as a custodian, who is required to work more than eight hours a day but has an FMLA-qualifying health reason may work a reduced schedule and use FMLA leave to account for the remainder of the shift. 

Furthermore, the opinion explicitly states an employee may continue to use FMLA leave for an indefinite period of time as long as the employee would continue to be eligible and has a qualifying reason for leave.  This has the potential to result in a situation where a school employee could work a reduced schedule indefinitely while utilizing their FMLA leave.  The opinion also reiterates the FMLA provides that an employee is entitled to 12 workweeks of leave per year.  Therefore, an employee who is regularly scheduled to work more than 40 hours of work per week is entitled to more than 480 hours of FMLA per 12 month period.  A custodian who is regularly scheduled to work 50 hours per week could be eligible for 600 hours of FMLA leave in the event their doctor certifies that they need intermittent leave.

Conclusion.  If you have any questions about the FMLA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

$235,000 Per Second

The “Big Game” has something for everyone; the snacks (nachos), the teams (Chiefs), the halftime show (Beyoncé 2013), and the commercials (Apple 1984).  Those clever, and occasionally disastrous, 30-second ads are the result of months of deliberation with the intent to make every $235,000 second count.  With a 2023 rate of up to $7 million, every choice made before, after, and during the 30-second spot runs is important.  Just like the ad agencies began their process months ago, you too can use your time to ensure that no taxpayer dollars are wasted when negotiating agreements.

Pre-negotiation: Consider any issues that arose during the school year. 

If your agreement from last year specified the teacher work day runs from 30 minutes before the school day begins until 30 minutes after school hours end, you might find yourself in a dispute if you need to adjust the start time a few minutes.  Why?  When you join a negotiated issue (teacher work hours) to non-negotiated issue (school start time) the newly created relationship between the two issues might bring them both under control of the negotiated agreement. 

The South Dakota Supreme Court has established a three part test for determining whether a subject is negotiable.  The Court explained:

A subject is negotiable only if it intimately and directly affects the work and welfare of public employees; an item is not negotiable if it has been preempted by statute or regulation; and a topic that affects the work and welfare of public employees is negotiable only if it is a matter on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.

West Central Education Association v. West Central School Dist., 2002 SD 163, 655 N.W.2d 916, 921 (citing Rapid City Education Association v. Rapid City Area School District No. 51-4, 376 N.W.2d 562, 564 (SD 1985)). The teachers’ union is not entitled to negotiate subjects like the school calendar because that would substantially interfere with the board’s inherent management prerogative to run the school as it sees fit.  You should not negotiate management prerogatives, matters of educational policy, or the board’s statutory duties.  Other areas boards should review and possibly revise are FMLA policies (be sure you aren’t giving more FMLA leave that you are obligated to provide) and sick banks (We hate them.  A lot.  Don’t get us started.) 

During Negotiations: Consider having KSB review the proposed agreement.

If you are building a house, you call an architect. If you need stitches, you call a doctor.  When you negotiate a legal agreement, you call your attorney.  KSB’s attorneys provide comprehensive reviews of negotiated agreements and provide boards and administrators with a report containing areas of concern and recommended revisions including updated legal language.  The cost is substantially less than $235,000 per second. 

Post-Negotiations: Review your negotiated agreement.

The people who create ads for the world’s most expensive athletic event are already working on the ads for 2024.  If you are looking over your agreement and realize that you have problems in that document, like tying early retirement to a specific age cap, there is no time like the present to consider a new version for next year.  When an agreement identifies a specific age cap for eligibility for a benefit, it can fall under the protection of the Age Discrimination in Employment Act (ADEA), which prohibits employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.  Protect your employees by making the conditions of retirement hinge on years of service instead. 

Enjoy the big game, the snacks, the commercials, and Rhianna; then get prepared for your upcoming negotiations–or, if you are too busy watching Monday morning quarterbacking, call KSB to think about it for you by contacting your attorney or dropping us a line at ksb@ksbschoollaw.com.

“You Can Check Out Anytime You Like, But You Can Never Leave”

Strategies for Avoiding Marathon IEP Meetings

One of the top special education questions we receive is “how does an IEP team avoid incredibly lengthy IEP meetings?”  First, it is necessary to dispel any misinformation that IEP meetings are required to last for a certain length of time.  Neither the IDEA nor its implementing regulations prescribe the specific length of time for an IEP meeting.  Additionally, the IDEA does not set forth the number of IEP meetings to be held.  However, the IDEA makes clear the school district must allow sufficient time to ensure meaningful parental participation.  In practice, this allows school districts to establish reasonable time limits on meetings and then take appropriate action.

Establishing Reasonable Time Limits

School districts may establish reasonable time limits for IEP meetings as nothing in the IDEA prohibits such time limits.  In El Paso Independent School District, 34 IDELR 226 (February 16, 2001), the school administrator informed the meeting participants that the meeting would last no longer than two hours and any unresolved issues could be addressed at a follow-up meeting.  The parent’s objected to the time limitation.  The parents filed a procedural complaint alleging multiple concerns, including the two hour time limit.  The hearing officer found the two hour time limit to be reasonable, and it was not a denial of due process.  However, the hearing officer noted the two hour time limit should have been communicated to parents prior to the start of the meeting.    

Honor Meeting Times Listed in Meeting Notice  

An IEP meeting must be held at a mutually agreed to time.  C.F.R. § 300.322(a)(2).  In Boward County School Board, 113 LRP 22496 (February 28, 2013), the school district issued a meeting notice to parents indicating the meeting would be held from 9:00 A.M. to 12:30 P.M.  However, the meeting continued until 3:30 P.M.  The parents filed a request alleging a due process violation as a result of the duration of the IEP meeting exceeding the time limit listed in the notice.  The administrative law judge held that even if the meeting's extended length amounted to a procedural violation, it did not impede the child’s right to FAPE, the parent's opportunity to participate in the decision-making process, nor caused actual deprivation of educational benefits.  However, if the district simply honored its reasonable time limit in the first place, it may have avoided costly due process proceedings.

Ending an IEP Meeting Early

A school district must afford parents meaningful participation in a child’s IEP by informing parents of the child’s needs and progress, ensuring the parents meaningful participation in the child’s IEP meetings, and ensuring parents have opportunities to express disagreement with the IEP team's conclusions and request revisions to the IEP.  In Compton Unified School District, 115 LRP 15206 (March 27, 2015), the parents filed a due process hearing request alleging the school district violated the IDEA’s parental participation requirements when the school district ended the IEP meeting early.  At the IEP meeting, the point of contention involved the continuum of appropriate placements for a sixth grade student with ADHD and a mood disorder.  The parents refused to discuss any placement except the one the parents requested.  The school district ended the meeting and requested the IEP team reconvene when the parties were willing to discuss all placement options.  The administrative law judge found the school district did not improperly conclude the meeting, and the school district did not ignore parental input. 

To that end, we often get asked whether a school district must end an IEP meeting early, and reconvene later, if the parent walks out of the meeting.  In those cases, unless the parent’s absence is related to a previously communicated commitment or emergency, we generally recommend that the team feel confident in continuing the meeting without the parents.  The team should communicate to the parent that the team will continue prior to their departure and should request that they stay and finish the meeting.  However, if the parent refuses, the team may continue and complete its work.

Our Tips    

• Consider establishing a time limit for the IEP meeting.

• Include time limits in the meeting notice.   

• If there are many issues to cover, you may consider breaking the IEP meeting up into shorter meetings.

• Ensure you allow for meaningful parental participation, but after robust discussion the meeting leader should feel empowered to move the meeting forward to the next agenda item.

• If necessary, conclude a meeting and reschedule for a follow-up if the meeting becomes unproductive. 

Conclusion

If you have any questions about IEP meetings, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

*This blog post was edited on February 22, 2023

Let’s Un-PPACA Some Recent Obamacare News

Administrators, please do us a favor.  Forward this to your school business officials right now.  We have two reasons for making this request  

First, we’ve set a date for our 2022 PPACA Reporting Workshop.  It’ll take place December 14, 2022, from 9 AM to noon central time, and it will be recorded and accessible afterwards if you (and/or your business officials) can’t make it live.  You can register here.  This webinar will be useful for all school business officials who have PPACA reporting obligations.

Second, we’re hoping to save you a lot of angst and confusion about some recent regulations released by the IRS regarding “affordability” calculations of insurance offers under PPACA/Obamacare and their impact on compliance.  We’ve received several questions on what, exactly, this means.  We’re hoping this post helps clarify things.

What regulations?  On October 11, 2022, the IRS released these regulations.  The same day, President Biden released this statement.  In summary, the regulations are designed to “fix” what has been called the “family glitch” under PPACA.  It’s called a “glitch” because, ironically, the better the offer of coverage from employer to employee, the fewer options the employee’s family may have to find reasonably priced insurance elsewhere.  We’ll discuss this below.  From the headlines, it is hard to understand what happened and what impact it may have on school district and service agency compliance.

The Good News.  You do not need to change your insurance offers because of these regulations.  Nor are you going to be subjected to additional tax penalties because of these regulations. 

Whether you’re a seasoned veteran or novice to the PPACA employer compliance game, you know one of the key questions we answer during reporting every year is whether your insurance offers to your “full time” employees are “affordable,” and whether your offer allowed your employees to “enroll” their families in your plan.  If a full-time employee receives an offer that is not “affordable” and that employee obtains insurance and premium tax credits through the healthcare.gov marketplace, the employer may be subject to a “pay or play” tax penalty.  However, the “affordability” calculation (and whether you may owe a penalty) is based on the cost of employee-only coverage compared to the employee’s household income, and not what it would cost to insure their entire family.  As a reminder, only applicable large employers (ALEs) are subject to this requirement.  You are an applicable large employer if you averaged at least 50 full-time employees, including full-time equivalent employees, during the prior calendar year. 

Thankfully, these new regulations did not change this analysis.  All of the employer compliance computations and all of that reporting will still be based on the cost of employee-only coverage.  In other words, the rules as we’ve all come to know them from the ALE compliance perspective did not change.

As the IRS put it: these regulations do not change when an employer could be subject to tax penalties, nor do they affect “any information reporting requirements for employers,” including Form 1095-C.  If you’re satisfied by knowing your insurance offer, 1095-C reporting, and possible tax penalty obligations were not really affected, no need to read on.  If you want more info on what did happen, read on, my friend.

Okay, so what really happened?  The reason it’s called the “family glitch” is pretty straightforward.  Let’s assume Employee A is a full-time paraprofessional that works for School District X, and School District X offers to pay Employee A’s full single premium and allows Employee A to pay out of pocket to enroll his spouse and kids.  Whether or not Employee A accepts the offer and enrolls, or declines the offer to seek insurance elsewhere, School District X will not owe a tax penalty on Employee A because the cost to Employee A for single-only coverage is $0.  In other words, School District X has satisfied its obligation to “offer” affordable insurance to its full-time employee and allow him to enroll the rest of his family through the school’s plan.  This is true even if Employee A’s family has to pay $17,000 more out of pocket to enroll their full family, because compliance is based on the single-only offer to the employee.

Sounds like you’ve done it correctly, right?  From the school’s compliance perspective, you have!  However, that offer could have a meaningful impact on the insurance options available to Employee A’s family.  It’s awesome that Employee A can receive single coverage at little or no cost, but what about Employee A’s spouse and kids?  What if Employee A’s spouse is self-employed, they have 3 children, and they can’t afford to pay the $17,000 difference between employee-only and full family coverage?  

Under the rules prior to these new regulations, because Employee A received an affordable offer from the employer, Employee A’s family was not eligible for premium tax credits or assistance if they tried to enroll through the healthcare.gov insurance marketplace.  Thus, the “family glitch.”  The Biden Administration (and most who commented on the proposed regulations) did not like that outcome.  Employee A’s family really needed the benefit of premium assistance through the marketplace, but they weren’t eligible for that assistance because Employee A received an “affordable” offer from School District X.  Marketplace eligibility was based on the cost of employee-only coverage, not the full cost to enroll the entire family.

These newest regulations changed that in an effort to “fix the glitch.”  Starting with the next healthcare.gov open enrollment period (which began Nov. 1, 2022), Employee A’s family now may be eligible for premium tax credits.  The new rules will compare the cost of enrolling Employee A’s full family on School District X’s plan against their household income.  If the percentage difference is low enough, then Employee A’s family may be eligible for premium assistance through healthcare.gov even if Employee A’s offer was “affordable.”  

Bottom line, the good ol’ “affordability” test for employer offers/reporting remains the same, but there’s a new “affordability” test for eligibility for premium assistance on healthcare.gov.  As an employer, you will still only owe a tax penalty if you fail to offer a full-time employee “affordable” single-only insurance coverage and that employee obtains coverage and premium assistance on the healthcare.gov marketplace.

What does it all mean?!  For our clients, not much from a purely legal compliance perspective.  However, practically speaking you may see more employees and their families seek out marketplace insurance.  They may do that by having the school’s employee take the district’s coverage and then insuring the employee’s family through the marketplace.  Or, maybe the entire family will head to the marketplace.  Will it lead to more negotiations over cash-in-lieu options; or more employees turning to healthcare.gov?  We’ll see.

If you have any questions about these new regulations or your PPACA compliance, please contact your attorney or drop us a line at ksb@ksbschoollaw.com.

S-O-S, Please, Someone Help Me

In honor of Rihanna being named this year’s Superbowl Halftime Performer (or more likely in response to a notable increase in emergency exclusions of students generally, and students with disabilities specifically), the Nebraska Department of Education issued and updated new “SOS” guidance on disciplinary removals of special education students.  This guidance confirmed that the NDE (consistent with the U.S. Department of Education) generally considers an emergency exclusion to be a “disciplinary” removal that requires a manifestation determination after 10 school days of removal (or a pattern of removals that aggregate past 10 school days) if it constitutes a change in placement.  Although we’ve long understood this to be the Department’s position, the updated guidance provides additional clarity to schools struggling to address threatening or disruptive conduct of a student with a disability. 

SOS Guidance TL;DR

The state and federal regulations implementing the IDEA require that a student be provided procedural safeguards (which begin with a manifestation determination) after a disciplinary removal of more than ten school days resulting in a change in placement.  For years, we’ve taken the position that an emergency exclusion is not a disciplinary action, and therefore could not trigger the procedural safeguards specific to disciplinary removals.  We expected, though, that the NDE would disagree with that position if given the opportunity.  This expectation was informally confirmed by Department officials in the past and was formally confirmed in the October 2022 SOS guidance.

The Department relied in large part on the recent Q&A Guidance from OSEP released in July 2022 (which we blogged about here.)  That guidance provided that the requirements related to disciplinary removals would apply even to “informal removals,” or in other words, “[an] action taken by school personnel in response to a child’s behavior that excludes the child for part or all of the school day, or even an indefinite period of time.”  As a result, the Department opined that “when districts [emergency] exclude a student under Neb. Rev. Stat. § 79-264(b) districts must follow special education discipline requirements” articulated by Rule 51.

So Do We Now Hold A Manifestation For Every Emergency Exclusion?

No.  Rule 51 only requires districts to make a manifestation determination when a student has been removed for more than 10 consecutive school days, or for a pattern of removals accumulating to more than 10 school days, and as a result has experienced a change in placement.

In other words, if a student’s emergency exclusion does not exceed the 10 school day threshold, the district is not required to provide services during the period of removal, hold an IEP Team meeting, or make a manifestation determination. 

Similarly, if the student’s emergency exclusion exceeds 10 school days, and the district provides special education services on the 11th day of removal sufficient to enable the child to participate in the general education curriculum (although in another setting) and progress towards meeting the goals in the IEP, the district is not required to hold a manifestation determination.  

On the other hand, if the student’s emergency exclusion exceeds 10 school days and constitutes a change in placement, a manifestation determination is required, and the District must follow the subsequent procedural requirements depending upon the determination made.

Conclusion

The new SOS guidance provides helpful clarity regarding the Department’s expectations and intended enforcement of Rule 51.  However, in most schools and under most circumstances, the new guidance won’t have a major impact on how administrators are keeping their schools safe.  When a student’s disability-related misconduct can be safely addressed through a change in educational placement and services, a disciplinary removal simply is not the most effective course of action.  In our experience, most schools are using the LRE continuum to address student issues when it can be done safely, are already working to serve and educate special education students during periods of emergency exclusion, and are only using emergency exclusion procedures to assess and address threats and risks.  Additionally, we always recommend schools work with their attorney when a student must be emergency excluded, especially if the student is a student with a disability.  

If you have an emergency you need help responding to, or any other legal questions or issues, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com. In the meantime, you can bring your questions about this guidance to, or just heckle Karen at, her presentations at the Tri-State Regional Special Education Law Conference in Omaha on Thursday and Friday.

Taking the “FML” out of the FMLA

Stuff happens.  In our office, there are countless ways life might come before work.  Ashley might act as if FMLA stands for “Friday and Monday Leave Act” and claim migraines necessitating intermittent leave.  Is intermittent leave appropriate for her migraines?  What if Bobby requests FMLA leave to deal with his stress caused by Jordan’s incessant bullying?  How does the FMLA interact with mental health diagnoses?  What if the law clerks Amanda and Jessa both generously find out they are eligible bone marrow donors and request to utilize FMLA leave for the retrieval process? (We are really stretching our brains over here creating clever hypotheticals!).

Part 4: It’s Closing Time, Open all the Doors, and Let You Out Into the (FMLA-riddled) World

What better way to end our FMLA series than with a reference to the classic 1990s hit by Semisonic?  We are certain you are happy it is “closing time” for this series.  As a refresher, Part-1 discussed FMLA basics and the type of family and health events that trigger FMLA eligibility.  Part-2 focused on employer notice obligations and special FMLA rules for instructional employees at schools.  Part-3 focused on the mechanics of FMLA leave.  Today’s latest installment addresses special school rules for instructional employees and lays out some common scenarios a school might encounter.  

Special School Rules for Instructional Employees

The FMLA includes a few unique rules for school instructional employees.

What if an instructional employee needs intermittent leave or leave on a reduced leave schedule for the employee’s own serious health condition, to care for a family member with a serious health condition, or to care for a covered servicemember?

The school may require the employee to choose either to: 

• Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or

• Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave. 

This section only applies if the leave is foreseeable based on planned medical treatment for a serious health condition and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend. 

What if an instructional employee does not give required notice of foreseeable FMLA leave to be taken intermittently or on a reduced leave schedule?

The school district may require the employee to: take leave of a particular duration; transfer temporarily to an alternative position; or require the teacher to delay the taking of leave until the notice provision is met. 

What if the leave begins more than 5 weeks before the end of a term?

The school district may require the teacher to take leave until the end of the term if leave lasts at least 3 weeks and the teacher will return during the 3-week period before the end of the term. 

What if the leave begins less than 5 weeks before the end of a term?

The school district may require the teacher to take leave until the end of the term if leave lasts at least 2 weeks, and the teacher will return during the 2-week period before the end of the term.

• Note: This section does not apply if the leave is for the employee’s own serious health condition.  

What if the leave begins less than 3 weeks before the end of a term?

The school district may require the teacher to take leave until the end of the term if leave lasts more than 5 working days.

• Note: This section does not apply if the leave is for the employee’s own serious health condition.  

Pulling it All Together   

Scenario 1

Michael, who began employment in August, comes to you in February with news that his brother, a covered service member, was injured while deployed overseas.  You ask what happened and learn that Michael’s brother broke his back and will be immobile for a time.  Referring to the general notice posted in his employee handbook and on the school’s employee web portal, Michael requests 4 weeks of FMLA leave to care for him.  While this is a serious health condition, you unfortunately must inform Michael that he is not a covered employee.  Why?  He has not worked there for at least 12 months or accumulated 1,250 hours during the 12 hours prior to the start of leave.  What next?  Issue an eligibility notice to Michael informing him that he is ineligible and include both reasons. 

Scenario 2

Jim and Pam have exciting news.  They are having a baby.  They both work for the school district.  Because the district does not offer maternity/paternity leave, they are trying to figure out how to stretch their paid time off to care for the baby.  Realizing that birth or adoption triggers the right to FMLA leave, you give Jim and Pam their eligibility notice. 

They both request 12 weeks of leave.  To complicate matters, they request intermittent leave, which means they each want to work a reduced schedule.  Must you grant either of these requests?

No.  Because Jim and Pam work for the same employer, they are only entitled to 12 total weeks of bonding time leave, between the two of them (for example, 6 weeks each of FMLA bonding time leave).  Furthermore, leave to care for a newborn (or newly placed) child may only be taken intermittently with the employer’s approval and must be taken within 1 year of the child’s birth.      

Scenario 3

Meredith is a teacher requesting leave to care for her father who has a serious health condition.  Seven weeks ago, Meredith learned that her father needed to undergo a procedure that would require daily follow-up appointments.  Today, Meredith requests leave from 9:00am to 10:00am each day beginning next week. 

Because Meredith failed to provide 30 days’ notice of foreseeable intermittent leave, she is subject to a special rule for instructional employees.  Instead of granting her request, the school may require Meredith to take leave of a particular duration, transfer temporarily to an alternative position, or require her to delay the taking of FMLA leave until the notice provision is met.   

Scenario 4 

It’s April 18th and a teacher, Toby, has requested 3 weeks of leave after adopting a child.  You’re scrambling to figure out the best way to cover his classes during his absence. 

There is a special rule for instructional employees near the end of the term.  If a teacher requests leave that is to begin less than 5 weeks before the end of the term and last more than 2 weeks, then under some circumstances the school can require that the teacher take leave until the end of the term. 

Conclusion

If you have any questions about the FMLA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Taking the “FML” out of the FMLA

Stuff happens.  In our office, there are countless ways life might come before work.  Tyler might injure his back lifting his Dungeons and Dragons table. (Wearing that wizard's hat while lifting can really put the strain on your back!)  Are Tyler’s treatment visits to the chiropractor covered by the FMLA?  Sara might jet off on a trip to Palm Springs (to drink wine, lay by the pool and read trashy novels) *ahem* to care for her mother’s serious health condition which requires treatment in a remote (and clearly delightful) location.  Is this an allowable situation to care for the serious health condition of a parent?  Can Coady obtain a doctor’s note claiming he needs intermittent leave from the office based on back problems and then fly to Hollywood to audition for a spot on the next season of Big Brother?  This week we explore the mechanics of FMLA leave.     

Part 3: It’s Easy as 1, 2, 3

Despite the classic reference to the Jackson 5 song ABC, the mechanics of FMLA leave may not seem as easy as 1, 2, 3.  We will break down the process to simplify the steps you should take as the employer to process an FMLA request.  As a refresher, Part-1 discussed FMLA basics and the type of family and health events that trigger FMLA eligibility.  Part-2 focused on employer notice obligations and special FMLA rules for instructional employees at schools.  Today begins with a Q&A about the mechanics of FMLA leave, followed by a hypothetical situation to demonstrate. 

An eligible employee requested FMLA leave.  You’re compiling an eligibility notice.  Now what? 

Can you require the employee to provide certification of the qualifying reason? 

Yes, if the employee is seeking FMLA leave for a serious health condition, whether it is the employee’s serious health condition or that of the employee’s immediate family member, you may request certification.  Similarly, if the employee is seeking military family FMLA leave, you may request certification. 

You should provide the employee with one of the certification forms found here. https://www.dol.gov/agencies/whd/fmla/forms

Speaking of forms, you must also include an eligibility notice form.  This is required to inform the employee of whether or not the employee is eligible for FMLA leave.  You must also include a designation notice.  The purpose of the designation notice is to inform the employee whether the FMLA request is approved and the amount of FMLA leave designated to be counted against the employee’s annual FMLA entitlement. 

Form recap:

• Must include: 

  • Eligibility notice form. 

  • Rights and responsibilities form. 

  • Designation notice form. 

• May include: 

  • Certification form if you wish to require certification. 

You can find these forms here.

Is there anything else an employer should know about certification? 

Yes, the employer must allow the employee at least 15 calendar days to obtain certification.  If the certification is incomplete, the employer must state in writing what is required to make the certification complete and give the employee at least 7 calendar days to cure the deficiency.

What if the employer doubts the validity of a medical certification? 

The employer, at its expense, may require a second or third medical opinion.  Second and third opinions are only permitted in cases of medical certification.  In the case of military leave, an employer may not require second or third opinions on a qualifying exigency certification. 

Once the employer has received a complete and sufficient medical certification, the employer cannot contact the health care provider for additional information. 

If the employee has paid time off available, can you require that the employee use such paid leave before or as part of the employee’s FMLA entitlement? 

Yes, the employer may require the employee to substitute or run concurrently accrued paid leave. 

Once the employee’s FMLA leave has begun, how do you count the days/weeks? 

You may remember from Part-1 that the typical FMLA leave entitlement is up to 12 workweeks in a 12-month period.  A workweek is defined as the number of hours an employee typically works.  For example, an employee who normally works 40 hours per week would use one-fifth of a workweek if the employee used 8 hours of FMLA leave. 

The FMLA leave entitlement is 12 weeks within a 12-month period.  Is the 12-month period a calendar year? 

Maybe.  The method of calculating the 12-month period is determined by the employer.  Employers have 4 options: 

• A calendar year. 

• Any fixed 12-month leave year. 

• A 12-month period measured forward. 

• A rolling 12-month period measured backward. 

You should check your district’s FMLA policy to be sure how your board has determined a 12-month period will be calculated at your district.

When can we retroactively designate FMLA leave?

What if you fail to recognize an employee’s absence as FMLA-qualifying?  You can retroactively designate leave as FMLA leave if it wouldn’t cause harm or injury to the employee.

You just received a leave request.  Now what? 

Joyce has worked for the school district as a teacher for 12 years.  She hardly misses a day, except for a few big vacations.  On a recent trip to Alaska, Joyce’s husband Jim severely injured his leg, which is going to require surgery.  Although her vacation days are dwindling, Joyce has banked 6 weeks of paid sick time.  Unfortunately, Jim is going to need closer to 10 weeks to recover. 

As soon as the accident occurred, Joyce notified you.  Although she was unable to provide 30 days’ notice, such notice is not required when the leave is unforeseeable.  Joyce is eligible for FMLA leave because she has worked over 1,250 hours in the preceding 12 months, the district employs over 50 people within 75 miles of her school, and she has worked for the district for over 12 months. 

After your preliminary review, you must deliver the appropriate forms to Joyce.  Always include the notice of eligibility form, along with the rights and responsibilities form.  You may include an appropriate certification form. 

After Joyce completes the certification form, evaluate it.  Is it timely?  Is it clear, complete, and sufficient?  Will you require a second or third opinion (at the district’s expense)?  Assuming the certification form is complete, the last requirement is to deliver the designation notice to Joyce.

The designation notice informs Joyce of the amount of leave that is designated to be counted against the employee’s FMLA entitlement.  In this case, the district has a rule requiring employees to substitute paid leave.  Therefore, the FMLA designation here is 10 weeks.  Joyce will receive 6 weeks paid from her sick bank and the remaining 4 weeks unpaid.  The importance of immediately designating Joyce’s leave as FMLA-qualifying is that the entitlement clock starts immediately, instead of after her 6 weeks from her sick bank have concluded. 

Conclusion

If you have any questions about Joyce’s predicament or Parts 1 and 2 of our FMLA series, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Part-4 Teaser

What happens as Joyce returns from FMLA leave?  What if she does not return?  No matter the scenario, what are the district’s responsibilities?  The employee’s?  Tune in next week as we wrap up our FMLA series for a quick post about how to ensure an employee’s seamless reentry into the workforce, or how to ensure the district is protected if an employee does not return.

Taking the “FML” out of the FMLA

Stuff happens.  In our office, there are countless ways life might come before work.  Matt might injure himself on the dance floor while “chaperoning” Kelsey’s prom.  Shari might throw Karen from the side-by-side while traveling between their houses – again.  Can Shari claim family leave to take care of them both?  We’ll explore that question and more as we dive into the Family Medical Leave Act (FMLA) through a 4-part series.  

Part 2: Noticin’ You Noticin’ Me

Of course, it was Akon that brought Matt out to the dance floor.  And, I can see why he could relate to the song, given the fact that Shari is such a dangerous driver of small motor vehicles.  Now that you have the FMLA basics down from Part 1, you should be recognizing that Matt’s dance floor injury and Shari’s reckless driving could have FMLA implications for KSB as the employer of Matt, Karen, and Shari.  Assuming KSB was a covered employer, the next step would be for HR Coordinator Williams to ensure that KSB met its FMLA notice obligations to each employee.

General Notice

Think of notice obligations in two parts: 

First, a covered employer must conspicuously display notice about the existence of the FMLA on its premises.  This notice must explain the FMLA’s provisions and provide information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division.  

Second, employers are responsible in all circumstances for designating leave as FMLA-qualifying.  Employees need not refer to the FMLA when requesting leave.  An employer’s notice obligation begins the moment the employer acquires knowledge that leave might be for a FMLA purpose. 

The first type of notice is known as general notice.  All schools are covered by the FMLA and are required to post a notice explaining the FMLA's provisions.  The notice must be posted prominently where it can be readily seen by employees and applicants for employment.  The poster and the text must be large enough to be easily read and contain fully legible text.  Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section.

Furthermore, an employer must include general notice in its employee handbook or distribute a copy upon hiring each employee.  

An example of such a notice may be found on the Department of Labor website: https://www.dol.gov/agencies/whd/fmla/forms.

Eligibility Notice

The second type of notice is known as eligibility notice.  As soon as an eligible employee requests FMLA leave or the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances.

The notice must state whether the employee is eligible for FMLA leave.  If the employee is not eligible, the notice must state at least one reason why.  Possible reasons include: 

• The employee has not been employed for at least 12 months. 

• The employee does not have at least 1,250 hours of service in the 12 months prior to leave. 

• The employee works at a worksite where fewer than 50 employees are employed by the employer within 75 miles of the jobsite. 

With eligibility notice, the employer must include notice of specific rights and responsibilities related to the employee’s eligibility to take FMLA leave.  At minimum, this notice will include: 

• That the leave may be designated and counted against the employee's annual FMLA leave entitlement if qualifying.

• The applicable 12-month period for FMLA entitlement.

• Informing the employee whether the employee will be required to provide certification of the FMLA-qualifying reason for leave.

• Informing the employee of the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met) and whether the employer will require the substitution of paid leave.

• Any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments (see § 825.210), and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse).

• The employee's status as a key employee and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial.

• The employee's rights to maintenance of benefits during the FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave.

• The employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.

Assuming the employee is eligible, the employer must also deliver a designation notice, which we will discuss more next week in Part-3. 

KSB recommends schools utilize the DOL’s forms. The eligibility notice can be accessed at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-381.pdf. 

Wait, Don’t Employees Have Some Obligations Too? 

Yes, but we want to emphasize that ultimate responsibility for determining whether leave is FMLA-qualifying is with the employer.  While an employee must comply with the employer’s usual requirements for requesting leave, the employee need not expressly seek FMLA-qualifying leave.  For example, an employee does not need to say “FMLA” or “serious health condition” for the employer’s obligations to begin.  Instead, the employer is expected to recognize when the requested leave may be for an FMLA-qualifying reason. 

Generally:

• An employee must comply with the employer’s usual requirements for requesting leave. 

• Employees must request leave at least 30 days in advance when the leave is foreseeable. 

• If the leave is unforeseeable or not foreseeable by 30 days, the employee must provide notice as soon as possible and practicable under the circumstances. 

If an employee does not provide notice of foreseeable leave, the employer may delay FMLA coverage until 30 days after the date the employee provides notice.  In all other cases, the employer can typically delay FMLA coverage for the amount of time the employee could have but failed to provide notice. 

Conclusion

If you have any questions about notice obligations under the FMLA or want to hear more about Matt’s dance floor escapades, just provide notice to your favorite KSB attorney at (402) 804-8000 or reach out to the whole squad at ksb@ksbschoollaw.com. 

Part-3 Teaser

Last week, we discussed the basics of the FMLA, including spotting FMLA-triggering events.  Today we covered both types of employer notice obligations.  You know about employee eligibility and the requirements that come with it, but what does the rest of your day look like if an employee elects FMLA leave?  Next week we’ll kick it into high gear to cover the mechanics of FMLA leave.