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Philly Area Schools Prepare to Test Students for COVID-19

With an eye toward returning to in-person learning, several school districts in the Southeastern PA/ Philadelphia area have begun, or are looking to begin, voluntary, routine testing of all students and faculty for the COVID-19 virus. The Children’s Hospital of Philadelphia (CHOP), in connection with local health departments, have been working on a program known as “ACE-IT” (Assisting Childhood Education through Increased Testing) which will enable local area school districts to perform weekly COVID-19 testing of staff and students. The hope is that by conducting these tests, the program can help provide a safer environment for students and teachers to return to the classroom, which many have argued is a more effective teaching environment than virtual teaching.

What are Some of the Schools Participating?

The Lower Merion and North Penn school districts in Montgomery County, as well as the Delaware County Intermediate Unit, have been some of the first school districts to participate in the testing program, which is modeled after a similar public health initiative launched in Texas back in the fall.

North Penn volunteered to participate in the CHOP program and has been successfully running the pilot testing program for its teachers and staff since last month. Lower Merion has been doing “hybrid” instruction and is currently (as of February 9, 2021) testing about 1,000 staff members and students a week through the ACE-IT assurance testing program.

Meanwhile, Mastery Schools, a network of charter schools in Philadelphia and Camden, is also readying a program in partnership with the Broad Institute, that will enable it to weekly test its more than 14,000 teachers, staff, and students. The schools have been operating virtually, but plan to re-open with the weekly testing in place in March. The testing will be free, will require parental consent, and families can opt-in or out from being tested.

How Will These Tests Help Students get Back in the Classroom?

Since many schools opened around the country, none have reported any major outbreaks of the virus. Furthermore, there is evidence which suggests that schools have not typically been a significant source of COVID-19 spread. However, as schools open, there have been staffing issues as some teachers and others have been exposed to COVID-19 and forced to quarantine themselves, leaving schools to scramble with limited staff. The desire is that by implementing weekly testing, a certain level of comfort and confidence that in-person school is safe to attend will be provided by reducing opportunities for transmission, as well as allow schools to “catch” those positive with the COVID-19 virus but who are asymptomatic sooner rather than later.

According to the CDC, screening testing is particularly valuable in areas with moderate, substantial, and high levels of community transmission. Some schools may consider using pooled testing as a screening testing strategy for students. Pooled testing involves mixing several samples from different individuals together in a “batch” or pooled sample, then testing the pooled sample with a diagnostic test. If this test comes back positive, then the individuals in the pool are tested separately. This approach can increase the number of individuals that can be tested while reducing the need for testing resources. The ACE-IT program plans to utilize both routine assurance testing and rapid COVID-19 testing for those students and staff who begin to show or feel symptoms of COVID-19 during the school day.

How Much Will These Tests Cost?

For now, the CHOP plan is to provide various districts with the tests at no cost to those individual districts. According to their website, Mastery Schools will provide the testing for free, and will not bill insurance nor seek payment for the testing. CHOP is hopeful that as its pilot program continues to be successful, it will be able to expand upon it, with the goal of developing a model that others can use and incorporate into schools who are eager to give students, parents, and teachers some reassurance as they head back to the classroom.

If you are a charter school and require legal assistance, contact the legal team at MacMain, Connell & Leinhauser today. Call us at 484-318-7106 or contact us online to get started. Located in West Chester, Pennsylvania, we serve clients throughout the Philadelphia area, Chester County, and New Jersey.

Universities Face Lawsuits Concerning Tuition Payments Amid Pandemic

Various universities across the country are facing class action lawsuits amid the Coronavirus pandemic. Students claim that they are being unfairly burdened financially in response to the closures of on-campus learning. Many are seeking refunds for unused meal plans, dormitory services, and general loss of on-site learning. Class action lawsuits have been filed against public universities in Arizona, Michigan, Indiana, California, and Vermont. Private schools, such as Cornell University, Columbia University, and Drexel University, among others, are also facing such lawsuits.

The class action alleges that the universities breached their contracts to the students and have been unjustly enriched with tuition and room and board payments. Universities, in their defense, can argue that the pandemic has made it impracticable to keep campuses open and show that moving classes online has mitigated damages. They can also show that they are not unjustly enriched because they continue to pay faculty and staff during the pandemic.

When examining these issues, colleges and universities must remember that their relationship with the families enrolling is governed by contract law.  Formulating a well defined governing contract is essential to maintaining a good relationship with students and their families while also protecting the school. Many class action lawsuits do not identify the terms and conditions of a specific contract. Due to this, state law can be utilized to determine the existence of a contract between the university and student. Some states may find an in-fact contract between the university and student, while other states may find there was no contract. Once there is an established contract, there needs to be definite terms and conditions, such as:

Excuse of Contractual Performance. Traditional defenses in contract law excuse performance based on limited circumstances. Known as the force majeure clause, this governs how parties are expected to behave in case of unforeseen circumstances. The pandemic may qualify as an unforeseen circumstance provided it meets the definition of the term in the particular contract. Application of the force majeure clause may excuse the university from providing a particular service or allow it to modify the service provided.  However, many schools are reviewing their handbooks and enrollment agreements to ensure that they have an option where a force majeure event occurs.

Prohibition of Education Malpractice. Most jurisdictions across the nation are reluctant to second guess educators. If the lawsuit alleges that substitution to online education is inadequate, universities can argue that courts are prohibited from finding education malpractice in evaluating adequacy of a learning model and should defer to the institution’s determination regarding what the best method of educating is in a given circumstance.

Preclude Class Certification. In order to bring a class action lawsuit, plaintiffs must prove typicality of claims, as well as predominance of common issues. If the defense can show that the class lacks either typicality or predominance of issues, the class certification will fail. Large universities often have students taking courses on a variety of different curricula that may not meet the standards of typicality and predominance required.

The pandemic has challenged academic institutions to implement remote learning and adapt to unpredictability and dwindling revenues. The legal team at MacMain, Connell & Leinhauser represent colleges and universities navigating these unprecedented times and the challenges presented. For an initial consultation, please contact us at 484-318-7106 or contact us online. Located in West Chester, Pennsylvania, we address the needs of clients throughout Philadelphia, Chester County, and New Jersey.

How Should I Draft an Employee Handbook for My Company?

All businesses, however small, should have an employee handbook in place. A handbook can be utilized to articulate company policy, culture, and manage expectations, as well as help new hires understand how the company works, what it values, and serve as a reference when they have questions regarding employment. Additionally, an employee handbook sets up standards for behavior and consequences for improper conduct. When the rules are clearly articulated, an employer can point to the handbook when an employee’s behavior is unacceptable. This is how employers can ensure fairness and all employees can be subjected to the same rules. Without a handbook, an employer may face liability issues based on federal and state laws.

The process of writing a handbook requires an organization to think about what it values and the type of culture it wants to portray in the workplace. A handbook also allows a business to organize its policies and procedures in one place that can be used as a guide by everyone in the business to operate. Some practices and elements of employee handbooks are common to most businesses, however each employee handbook may have unique elements and style. The following elements should be included in every employee handbook:

Introduction: This section of the handbook should provide background information, a brief history, and the purpose of the handbook. This section can also provide a mission statement or a company vision for the future. It is advisable to state that the handbook is subject to revisions.

Notice of Anti-Discrimination Laws: Federal and state laws prohibit discrimination and harassment based on race, ethnicity, disability, and other classifications. The handbook should notify employees of their rights and means for reporting violations, as well as outline the procedure by which employees can have their rights addressed.

Intellectual Property Rights: Businesses should provide a section regarding their intellectual property rights to trademarks, trade secrets, patents, and other company know-how. Employees should be aware that rights to intellectual property created belong to the company and not the individual employee.

Confidentiality: The handbook should outline a company’s policy regarding confidentiality of company trade secrets and other sensitive information.  Additionally, confidentiality of employee information should be addressed. There should be a section regarding employee privacy to sensitive information, such as Social Security numbers and payroll. Employees should also be aware of an obligation for nondisclosure of important and sensitive company information.

Benefits: The handbook should provide information on sick leave, paid leave, vacation time, and company-paid holidays. It should also provide information on other benefits provided, such as eligibility for participation in a 401k and other retirement plans, as well as health, dental, and life insurance policies.

Payroll and Attendance: The handbook should clearly outline pay periods and overtime pay for those who are classified and eligible to receive it. It should also clearly state the attendance policy, including policies regarding working from home. This section should define how completed work should be reported and how notifications regarding leave of absence can be made.

Safety Protocols: The handbook should outline Occupational Safety and Health Administration standards and provide procedures for reporting work injuries.

Code of Conduct: This section should articulate expectations regarding dress code, appropriate behavior toward coworkers, and interactions with customers and clients.

An experienced employment attorney can craft an employee handbook this is aligned with a company’s overall mission and also complies with federal and state laws.

The legal team atMacMain, Connell & Leinhauser provides a range of human resource counseling, including a creation and review of employer policies and handbooks to minimize legal exposure. For an initial consultation, please call us at 484-318-7106 or contact us online. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia, Chester County, and New Jersey.

Equal Employment Opportunity Laws During COVID-19

The United States Equal Employment Opportunity Commission (EEOC) recently updated their technical assistance publication. This update addresses commonly asked questions about the Federal Equal Employment Opportunity Laws in accordance to the COVID-19 pandemic. The new publication entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” discusses the previous publication about the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as well as including a question and answer section.

The question and answer section of the updated publication addresses concerns regarding returning to work, appropriate accommodations being made, and the current harassment protocol. Answers to common questions include:

  • How much information may an employer request from an employee who calls in sick to protect its workforce during the COVID-19 pandemic?
  • When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
  • Does the ADA allow employees to stay home if they have symptoms of the COVID-19?
  • May an employer disclose the name of an employee to a public health agency if they have COVID-19?
  • If an employer is hiring, may it screen applicants for symptoms of COVID-19?

This publication also provides the public with resources on issues related to the current COVID-19 pandemic. The EEOC will continue to provide updates and assistance to the community during this public health crisis. To read the question and answer section, click here.

The main goal of the EEOC is to advance the opportunity of employees in the workplace and develop laws that prohibit employment discrimination. This includes discriminating against a job applicant or employee on the basis of sex, race, color, religion, age, or disability. Those who engage in discriminatory acts could face legal charges. Employers with at least 15 employees are covered under EEOC laws, as well as most labor unions. For more information on the EEOC, click here.

The experienced labor and employment attorneys at MacMain, Connell & Leinhauser are available to answer any questions you have about the new employment laws and the effects COVID-19 has on workers in the United States. We are taking client inquiries over phone or video conference to maintain the health and safety within our staff and clients. Contact us online or call us today at 484-318-7106 for an initial consultation. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County, Pennsylvania, as well as New Jersey.

OSHA Updates How Employers Record COVID-19 Cases

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued interim guidance on the duties that employers have when recording cases of COVID-19. These guidelines were issued on April 10, 2020 and will last for the duration of the pandemic. OSHA states that employers must report any confirmed COVID-19 diagnosis.

Work-related cases involving OSHA general criteria need to be reported immediately. A work-related condition includes exposure to COVID-19 in the work environment causing or contributing to the resulting condition or aggravating a pre-existing illness. OSHA general recording guidelines include injury or illness resulting in death, days missed from work, restricted work, or a severe diagnosis by a physician. OSHA treats COVID-19 as a recordable illness that can cause missed workdays and, in some cases, death. Unlike the flu or common cold, COVID-19 is recordable due to its dangerous nature and how highly contagious the virus is.

If there is a COVID-19 diagnosis in the workplace, it can be hard to determine if the worker contracted the illness from the work environment or from another source. OSHA determined that they will enforce the reporting of all cases except for those where a cluster of cases emerge among those working in close proximity and employers who knew about current cases in the workplace. OSHA continues to enforce employers to focus on implementing good hygiene practices to reduce the effects of COVID-19.

During this difficult time in our country, employers still need to record any work-related injury or illness, including COVID-19. For concerns regarding the COVID-19 pandemic, contact the attorneys at MacMain, Connell & Leinhauser at 484-318-7106 or contact us online for an initial consultation. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia, Chester County, and New Jersey.

IS YOUR SMALL BUSINESS EXEMPT FROM THE EMERGENCY PAID SICK LEAVE OR EMERGENCY FAMILY MEDICAL LEAVE REQUIREMENTS UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT?

On March 17, 2020 President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA became effective on April 1st and requires, among other things, that all employers with less than 500 employees to provide emergency sick leave of up to 2 weeks paid time off for certain Covid-19 related concerns, including mandated quarantine as a result of a positive test or for suspicion of infection and for certain school and or day care closings impacting employees. On Saturday April 3 the Department of Labor issued additional guidance and FAQs related to the employer’s responsibilities under the FFCRA. Included in the FAQs is clarification for when certain employers, with less than 50 employees may qualify for an exemption from the emergency paid leave and / or emergency family medical leave provisions of the FFCRA. Below is a link to the DOl’s guidance and FAQs and an excerpt from the FAQs to help you determine if you may be eligible foe an exemption.

https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

  1. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
  1. If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

To learn more about our services and how we can help, call our legal team at 484-318-7106 or contact us online to schedule an initial consultation today. The offices of MacMain, Connell & Leinhauser are located in West Chester, and we represent business owners throughout Philadelphia and Chester County, as well as in New Jersey.