Education Law Notes  

As an attorney representing Connecticut educational institutions (and employers in general), I am receiving numerous calls from clients with respect to how to properly address the possibility that the upcoming Thanksgiving holiday mini-break could lead to COVID-19 incidents.  Specifically, clients are concerned that employees (and students) will be celebrating the holiday by visiting relatives and in the process 1) travel to states that are on the Connecticut Travel Advisory listing as a COVID-19 “hotspot”, and/or 2) potentially be in close contact with persons who have COVID-19.      

THE GENERAL QUARANTINE RULE: As my colleague, Attorney Zachary Schurin,  has recently written, https://workingtogether.pullcomblog.com/archives/executive-order-9i-exempts-travel-to-new-york-new-jersey-and-rhode-island-from-affected-state-covid-19-quarantine-list/,  the Governor’s Executive Orders have generally required that persons traveling to and spending at least 24 hours in a state that has a high rate of COVID-19 quarantine themselves for 14 days from the last contact with the affected state. The listing of states covered by the travel advisories/restrictions is updated and published on the State of Connecticut’s COVID-19 response page.  New York, New Jersey and Rhode Island are currently exempted from this listing of affected states.   

THE TESTING EXCEPTION: Executive Order 9I contains a testing alternative to the usual 14-day quarantine requirement.  Under such circumstances, a traveler is exempt from the self-quarantine requirement if he or she has had a negative COVID-19 test in the 72 hours prior to arrival in Connecticut or at any time following arrival in Connecticut. The traveler is further required to submit proof of a negative COVID-19 test to the Connecticut Commissioner of Public Health. The COVID-19 test must be a nucleic acid test, such as reverse transcriptase polymerase chain reaction (“RT-PCR”) tests.

SO, WHAT CAN A SCHOOL DO REGARDING ITS STAFF?  A school(as any employer) must ensure compliance with the general quarantine requirement and should not be allowing persons to return to work in contravention of this mandate.  Generally, an employee who must be out of work due to the need to quarantine for COVID-19 pursuant to a governmental command would be eligible for up to two weeks of paid sick leave under the Families First Coronavirus Response Act (“FFCRA”).  In light of the Governor’s Executive Orders, and guidance from both the Centers for Disease Control and Prevention (“CDC”) and U.S. Equal Employment Opportunity Commission that give employers considerable discretion to require COVID-19 testing, and in order to ensure that employees can return to work promptly, the school could generally require employees returning from travel from affected states (or countries) to submit to a COVID-19 test in the 72-hour window prior to their return or upon their return. 

NOTICE IS IMPORTANT: The school should ensure that there is adequate notice to its staff of its out-of-state travel protocols, such as disclosing travel plans in advance and making testing arrangements.  At the very least, in addition to any policies, protocols, or forms, the school should send a notice to staff reminding everyone of these requirements.  It is essential that schools communicate effectively the expectations for the return to work from the Thanksgiving holiday and remind employees to familiarize themselves with all Connecticut travel restrictions prior to leaving our State, as those restrictions may change from time to time. 

FURTHER EMPLOYMENT CONSIDERATIONS: While requiring such testing for those returning from out of state travel might limit the amount of time that an employee may be out of work (and arguably cut off one’s eligibility for FFCRA leave), an employee may still be eligible for paid FFCRA leave while awaiting the results of a COVID-19 test.  If feasible, an employer may require the employee to work remotely during either a quarantine period or while awaiting a COVID-19 test in lieu of FFCRA leave, but an employer is under no obligation to create remote work options. Indeed, for certain positions in the schools, remote work may not be an option. While there is no prohibition on employers imposing travel, testing and quarantine restrictions that are more restrictive than Governor Lamont’s Executive Orders, school employers may be able to avoid having to bargain over these requirements with their unions (and avoid other legal issues) by staying within the contours of the Executive Orders and federal guidance.    

WHAT ABOUT STUDENTS?  This may be a bit hazier.  Of course, schools should continue to request that students self-screen themselves for symptoms and may request that parents disclose in advance (and upon return from) any out of state travel.  While schools could request or suggest that parents have their child submit to a COVID-19 test upon their return from out of state travel in order to avoid the quarantine requirement, it is unclear as to whether a school could require a child to take such a test.  More likely, a student who returns from out of state travel who does not (or cannot) submit to a COVID-19 test would simply be offered distance learning opportunities during the quarantine period.  While a school could discipline an employee who violates protocols by (for example) failing to disclose out of state travel and/or by reporting to work after any such undisclosed travel, disciplining a student for a parental failure to disclose such travel may be riskier.  The proper remedy is simply to send home (or refuse entry to) the student and have the student participate in remote learning.                

ONE FINAL REMINDER ABOUT “CLOSE CONTACT” WITH COVID-19: If while visiting a COVID-19 “hot spot” (or frankly, any spot), a staff member or student was in “close contact” with someone with COVID-19, then the State Department of Education and CDC guidelines for quarantining still control, as there is no testing exception for quarantining under these circumstances. https://schoollaw.pullcomblog.com/archives/dispelling-some-myths-in-responding-to-covid-19-incidents-close-contacts-quarantines-and-tests-and-ignoring-the-noise/.

Pullman & Comley has policy templates, forms and other useful resources available to assist Connecticut schools and employers in considering and implementing their options and navigating the web of executive orders, laws, regulations, and other state and federal guidance related to COVID-19.  Please contact our attorneys for assistance.