Can employers require employees to get the Covid-19 vaccine?
As the Covid-19 vaccine rollout begins, employers are wondering whether they can require their employees to be vaccinated as a condition of coming to work. The Equal Employment Opportunity Commission (“EEOC”) recently offered guidance suggesting the answer is “yes.” Here are a few highlights from the EEOC’s guidance:
- Employers can ask an employee to show proof of vaccination, but certain conditions must be met before asking why an employee has not received the vaccine.
- Employees who cannot be vaccinated because of a disability or refuse vaccination because of a deeply held religious belief may be exempt from such a requirement.
- For employees who request an exemption, employers should engage in an interactive, back-and-forth dialogue to develop a reasonable accommodation.
Requiring employees to be vaccinated has a number of legal risks and may not be popular. Employers should contact legal counsel if considering such a requirement. Other vaccine-related issues are quickly emerging.
President Biden’s American Rescue Plan
President Joe Biden has issued his “American Rescue Plan” which asks Congress to:
- Provide $130 billion to help schools open and operate safely.
- Expand and extend some of the FFCRA employee leave provisions through September 31, 2021.
- Raise the minimum wage to $15/hour.
- Expand unemployment insurance.
Time will tell whether and how quickly Congress acts on these measures.
Miguel Cardona – Biden’s Pick for Education Secretary
Cardona is a former teacher, principal, and district administrator, currently serving as the head of Connecticut’s Department of Education. Cardona has been a proponent of keeping students in school buildings during the pandemic as much as possible. He has also emphasized the importance of more frequent data collection for vulnerable populations to ensure all students remain engaged in learning.
South Carolina Pregnancy Accommodations Act Presentation for SCASA
Attorney David Lyon presented at the South Carolina Association of School Administrator’s 2019 Personnel Winter Conference. The topic: the South Carolina Pregnancy Accommodations Act. A copy of the presentation is available below for informational purposes.
Call any of the Duff Freeman Lyon attorneys with any questions you have about the Act or its application to your specific circumstances.
Case Law Update
4th Circuit Court of Appeals holds County Official Violated First Amendment by “blocking” critic.
On Monday, January 7, 2018, the Fourth Circuit Court of Appeals held that a county official who blocked a critic from her Facebook page violated the First Amendment. The case involved the Board Chair of the Loudoun County Board of Supervisors, Phyllis J. Randall, who created the “Chair Phyllis J. Randall” Facebook Page. The page included information about issues relevant to the board’s business and important updates for the board’s constituents.
It also invited “ANY Loudoun citizen” to visit the page and comment “on ANY issues.” When a citizen posted a comment critical of the board, including at least one comment suggesting that the Board members were accepting financial “kickbacks,” the Chair Randall chose to delete the post and ban the citizen from her page. The ban was temporary, but it led the citizen to file a federal lawsuit against the Board Chair, in her official and individual capacity, as well as against the rest of the Board, in their official and individual capacities.
The Fourth Circuit Court of Appeals held that the Facebook page was a “public forum” for the purposes of the First Amendment and the Chair’s decision to “block” the comments of a critic of the board chair was unconstitutional viewpoint discrimination.
This is the first Federal court of appeals ruling on whether the First Amendment applies to government-run social media sites. In May 2018, a lower court in New York held that President Trump’s blocking of critics from his Twitter account violated the First Amendment. That appeal is currently pending before the U.S. Court of Appeals for the Second Circuit.
The court’s full opinion is available here.
If your Board has questions about social media practices, our attorneys are happy to provide guidance or training for your members.
DUFF FREEMAN LYON ATTORNEY, TIFFANY BUTLER, FEATURED IN SPECIAL ED CONNECTION “HOW I ADVISE MY CLIENTS”
“How I Advise My Clients” is a Special Ed Connection® feature that provides expert opinions from attorneys and education consultants for overcoming common problems and core challenges in the field. Special Ed Connection (specialedconnection.com) is an LRP online resource for special education research.
‘How I Advise My Clients’: How should a district respond when parents request a specific methodology for their child with dyslexia?
Tiffany Butler, School Attorneys, Duff Freeman Lyon, LLC, Columbia, S.C.:
Dyslexia affects each child differently, and there is no “one size fits all” approach to addressing the needs of children with dyslexia.
Like any other parent requests, school districts should address a parent’s request for a specific methodology for their child with dyslexia through the IEP process. Consider the following points:
- For students with an IEP, convene an IEP meeting to include key service providers to discuss the parent’s concerns and review all available information for the
- If there are indications that the current services are not fully addressing the child’s individual needs or that his needs have changed, consider and discuss what changes need to be made to the student’s
- While school districts are not required to adopt a parent’s preferred educational methodology for their child, they are required to develop a program tailored to that child’s needs. Such a program could include adopting a specific
- If the IEP team determines that the child’s current program is appropriate, the child’s individual needs are being met, and the child is making appropriate progress in light of his circumstances, it is OK to refuse the parent’s request. However, it is imperative that the team includes the basis for its decision in the prior written notice issued to the
- In the case of a student without an IEP who has been medically diagnosed with dyslexia and the parent requests a specific intervention as a result of the diagnosis, convene a multidisciplinary team to determine whether a comprehensive educational evaluation should be completed for that child. An evaluation will determine whether the child needs specialized instruction or whether his educational needs can be met with accommodations pursuant to a Section 504
- More importantly, support by data and thoroughly document any decision made by the IEP
WILLIAM FREEMAN SELECTED TO PARTICIPATE IN RILEY INSTITUTE’S DIVERSITY LEADERS INITIATIVE
Duff Freeman Lyon, LLC congratulates William C. Freeman on his selection to participate in the Riley Institute’s Diversity Leaders Initiative (DLI). The DLI is an award-winning program that brings together a select group of committed individuals for classes focused on developing decision-making and leadership skills in an increasingly diverse world.
DLI participants are selected for their capacity to impact their organizations and communities. As part of the program, participants work in small groups to identify and develop solutions for real issues facing their communities and to foster the completion of community action projects. Upon completion of the program, William will join the ranks of Riley Fellows, a powerful, cross-sector, statewide network of leaders united in their commitment to progress in South Carolina.
For more information on the Diversity Leaders Initiative, visit https://riley.furman.edu/diversity/initiatives/diversity-leaders-initiative-dli.
POLICIES AND NOTICES REQUIRED BY FEDERAL LAW
Policies and Notices Required by Federal Law
Various federal laws require school districts to have policies and notices in furtherance of those laws. Now is a good time to ensure that your District is compliant. The following is a brief listing of just some of the policies school districts should have and their notice requirements:
Every Student Succeeds Act of 2015 (ESSA)
ESSA is the latest reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA) and will take effect at the start of the 2017-2018 school year. ESSA requires state education agencies, school districts, and individual schools to provide numerous notices to parents, the public, and others. Some of the notices required by ESSA include: annual report cards; parental involvement policies; state education agency complaint procedures; teacher and paraprofessional qualifications; student achievement information; a disclosure that the district routinely releases the names, addresses, and phone numbers of secondary students to military recruiters unless parents opt out; and information about the status of English Language Learners.
The various federal anti-discrimination laws generally require that notice be given to students, parents, and the public that the District does not discriminate on the basis of age (the Age Discrimination Act); disability (Section 504 and Title II of the Americans with Disabilities Act); race, color, ethnicity, and national origin (Title VI of the Civil Rights Act of 1964); and sex (Title IX of the Education Amendments of 1972). Each of these laws generally require the notice to identify and provide the contact information of the employee(s) designated as coordinating compliance, and in some cases, investigations under the act. These laws also generally require that districts adopt and publish grievance procedures. This information should be available on the District’s website, in student handbooks, and other communications to students and parents.
The Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act of 1993 (FMLA) require that notice be given to employees explaining each law’s provisions and employees’ rights and responsibilities. The Department of Labor provides posters regarding the above notices, which can be found at https://www.dol.gov/general/topics/posters. The relevant notices should be posted where employees can readily see them.
The Healthy, Hunger-Free Kids Act of 2010 requires districts to adopt local school wellness policies and inform and update parents, students, and the public about the content and implementation of those policies. Additionally, districts must have procedures that enable parents to request modifications to meal services for their children with disabilities. The National School Lunch Act requires that notice be given to parents and the public about free and reduced-price meals and/or free milk near the beginning of the school year. Parents must also be provided with an application form.
Special Education Update – Endrew F. v. Douglas County School District
In March 2017, the U.S. Supreme Court issued its highly anticipated ruling in the case of Endrew F. v. Douglas County School District. The court held that Individualized Education Programs (IEPs) must give children with disabilities more than a de minimus, or minimal, educational benefit.
In a unanimous decision written by Chief Justice Roberts, the court rejected the school district’s de minimus standard but also rejected the “equal opportunity” standard for which the parents advocated. Acknowledging that IEPs are developed based on each child’s unique needs and circumstances, Roberts crafted a more flexible standard – that IEPs “must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Importantly, the opinion emphasized that the IDEA requires IEPs to be developed with expertise from schools and input from parents, and schools must give “cogent and responsive explanation[s]” for their decisions.
The Endrew F. decision is likely not a game-changer regarding the standard for FAPE for school districts. However, in South Carolina, since our Districts followed the Fourth Circuit Court of Appeals’ “some” benefit analysis, the decision will likely have a greater impact in that it confirms that South Carolina districts will need to apply a “meaningful” benefit standard in judging the effectiveness of IEPs.