DESE Adopts New Student Learning Time Regulations

Recently, the Massachusetts Department of Elementary and Secondary Education (“DESE”) approved emergency regulations relative to student learning time in light of hybrid and remote learning models.  Districts will be required to provide a certain amount of live and synchronous instruction to students.

Effective January 19, 2021, 603 CMR 27.00 now requires that schools operating in a:

  • Hybrid learning model:
    • Provide at least 35 hours of live instruction over a 10-day school day period, averaged across the grades in the hybrid learning model.
  • Remote learning model:
    • Provide synchronous instruction each school day; and
    • Provide at least 40 hours of synchronous instruction over a 10-day school period, averaged across the grades in the remote learning model.

The revised regulations may be accessed here: https://www.doe.mass.edu/bese/docs/fy2021/2020-12/item2.2-slt-p-amend-strikethrough.docx

If you have any questions regarding this update, bargaining obligations associated with the learning time requirements, or school law generally, please contact us.

Labor and Employment Updates for 2021

Employers can expect several changes to come in 2021.  As detailed further below, there are many upcoming changes to federal and state laws that require employers be prepared.

Families First Coronavirus Response Act (“FFCRA”)

In 2020, the federal government passed the FFCRA, which encompassed two acts providing leave time to certain employees impacted by COVID-19: the “Emergency Family and Medical Leave Expansion Act” (“EFMLA”) and the “Emergency Paid Sick Leave Act” (“EPSLA”).  The FFCRA has required that all public employers, and all private employers with fewer than five hundred (500) employees, must provide leave consistent with the EFMLA and EPSLA.  The legislation passing the FFCRA called for the Act to expire on December 31, 2020, with no further EFMLA or EPSLA leave to be taken by employees beyond that date.

The recent pandemic relief package did not extend the FFCRA into 2021.  However, employers may voluntarily offer leave consistent with the FFCRA to employees.  Employers that choose to do so may utilize payroll tax credits to cover any voluntary FFCRA benefits provided through the end of March 2021.  At the time of this advisory, it appears that public employers are not entitled to payroll tax credits.  However, the Internal Revenue Service (“IRS”) has yet to issue definitive guidance on this issue.

Massachusetts Paid Family and Medical Leave Act (“PFMLA”)

Beginning on January 1st, certain employees in Massachusetts will be able to access PFMLA leave for:

  • Twelve (12) weeks of family leave to bond with a child newly born, adopted or placed in foster care;
  • Twelve (12) weeks of family leave to manage family affairs while a family member is on active duty overseas;
  • Twenty (20) weeks of medical leave to manage the employee’s own serious health condition; and
  • Twenty-six (26) weeks of family leave to care for a family member who is a covered Service Member.

Beginning on July 1st, employees will be able to access PFMLA leave for:

  • Twelve (12) weeks of family leave to care for a family member with a serious health condition.

Public employees may only access PFMLA leave if the public employer has chosen to opt-in to providing PFMLA leave.

Eligible employees may access PFMLA benefits by submitting an application to the Massachusetts Department of Family and Medical Leave (“Department”).  Weekly benefits are determined and capped by the Department, but the actual benefit amount depends on an employee’s average weekly wage and the average weekly wage for workers in Massachusetts.  Employees can receive up to twenty-six (26) weeks of PFMLA leave in a benefit year.

PFMLA leave runs concurrently with the federal FMLA and the Massachusetts parental leave act.  An employee must choose between utilizing accrued paid leave or PFMLA benefits, however an employee is not required to exhaust accrued paid leave before using PFMLA benefits.  An employer must continue to provide employment-related health insurance benefits at the level and under the conditions that coverage would have been provided if the employee had been working, however the employee is responsible for paying the employee’s share of health insurance premiums.

Juneteenth Holiday

The Commonwealth of Massachusetts has designated Juneteenth as an official state holiday.  As a result, public offices must be closed on Juneteenth and employees may be entitled to holiday pay.  Employers should review their policies and collective bargaining agreements relative to holiday pay provisions.

If you have any questions about the content of this update, or labor and employment law generally, please contact us.

This update is provided for informational purposes only and is not considered legal or tax advice.

Four VDH Attorneys Named 2020 Massachusetts Super Lawyers and Rising Stars

Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2020 and Nicholas J. Dominello and Jennifer F. King have been named Massachusetts Rising Stars.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  This selection process includes independent research, peer nominations and peer evaluations.  Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.

CERB Rules That Teachers Participated In Illegal Strike

The Commonwealth Employment Relations Board (“CERB”) recently issued a decision holding that Andover Public Schools teachers participated in an illegal strike in violation of G.L. c. 150E, § 9A when they refused to enter school buildings on the first work day of the school calendar for 2020-2021 and insisted instead on performing their work outside the buildings on a remote basis.

In Andover Education Association, No. S.I.-20-8176 (Sept. 8, 2020), the district had designed, and then obtained approval from DESE for, a “hybrid” school reopening plan.  Teachers were directed to report to their designated buildings on the first day of the work year to engage in professional development – no different than any other year.  The variation in this year’s professional development work, however, was based on the Commissioner of DESE’s reduction of student learning time by 10 days, from 180 to 170, pursuant to emergency regulations and on his entry into an MOU with the MTA, AFT, and Boston Teachers Union that the 10 days would instead be devoted to reopening “preparation” work.  The district therefore scheduled activities for the first day that included tasks mandated by DESE’s COVID-19 reopening guidelines such as moving desks, testing Wi-Fi operation between classrooms and offices inside the buildings, and wayfinding around the buildings to learn new walking paths.

The union voted to have its members engage in what was labeled a “workplace safety action” in which teachers would allegedly work remotely outside of the buildings which they claimed had HVAC concerns.  As a result, many teachers did not accomplish their assigned duties for that day.  The School Committee filed a strike petition and the Department of Labor Relations’ strike investigation promptly ensued on September 3, 2020.  The CERB issued its decision on September 8, finding that those teachers who refused to enter their schools had engaged in an illegal strike and that the union and its officers also had violated the statute by condoning and encouraging a strike.

The CERB found first that the duties scheduled for the first day were required and were established by consistent practice even though the specific tasks may have been new for this school year.  It pointed out that the scheduled tasks inside buildings were an intrinsic part of the teachers’ duties given the unique circumstances of this school year arising from the pandemic.  The CERB noted that the union cited no authority permitting its members to “unilaterally dictate where they perform their work.”  It emphasized that a strike that violates § 9A is not limited to a full or partial refusal to perform duties but also covers a concerted refusal to report for duty.  The issue, therefore, was what constitutes reporting for duty under the law.

The CERB concluded that the phrase “report to duty” in G.L. c. 150E, § 1 “means reporting not only when but where the employer has ordered its employees to report.  In this case, that means inside the school buildings, including inside classrooms.”  The CERB expressly rejected the union’s argument that the law permits an employee to report to any location from which an employee can perform duties remotely.  Finally, the CERB ruled that despite labeling what happened as a “workplace safety action”, the union had presented insufficient evidence of circumstances giving rise to an “imminent risk of serious injury or death” such as might justify a refusal to enter the buildings.

The CERB therefore ordered the union and its officers to cease and desist; ordered the union’s officers to notify union members of their obligation to fully perform their duties; and ordered them to inform members of the contents of the order.

This decision addresses the “new normal” driven by the pandemic, in which remote work and learning are part of the fabric of public education in Massachusetts.  Under this ruling employees who attempt to unilaterally dictate when or where they will perform work, or what work will be performed, now risk being found to have violated Massachusetts law.

If you have any questions about the content of this update, or employment or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Department of Labor Revises Regulations on Families First Coronavirus Response Act

Following a decision from a federal court in New York vacating portions of the Families First Coronavirus Response Act (“FFCRA”) regulations, the Department of Labor (“DOL”) recently published revised regulations addressing the court’s decision.

Notably, the revisions establish a new definition for a “health care provider” after the New York court found the previous definition to be overly broad.  The revised regulations define a health care provider the same as the Family and Medical Leave Act (“FMLA”), which is (i) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery; or (ii) any other person determined to be capable of providing health care services.

The revisions also amended other portions of the regulations.  Previously, the regulations directed employers to obtain required FFCRA leave documentation from employees prior to taking leave.  Now, the regulations clarify that employees can submit this documentation to employers as soon as practicable.  Additionally, the revisions state that an employee seeking expanded family and medical leave (“EFMLA”) under the FFCRA should notify their employer as soon as practicable, when before, the regulations did not address the timeframe in which employees needed to notify employers of their need for leave.

Despite being directed to do so by the federal court, the revisions did not amend portions of the regulations which limit FFCRA leave to employees who have work otherwise be available to them, and that require an employer’s approval to take FFCRA leave intermittently.  However, the DOL provided additional explanations for these regulations should they be challenged again.

Furthermore, the DOL addressed employee requests for intermittent EFMLA when the employee’s child is enrolled in a school with an alternate date or other hybrid-attendance program.  The DOL stated that “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”  As a result, the DOL states, intermittent leave is not needed for employees whose children are enrolled in such a program.  Rather, intermittent leave would apply in a situation where the school or daycare is closed for a period of time, and the employee only seeks leave for “certain portions of that period for reasons other than that school’s in-person instruction schedule.”   That being said, the regulations still require employer approval for intermittent leave.

The revised regulations go into effect on September 16, 2020.

Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Reminder – New Title IX Regulations Going Into Effect on August 14, 2020

Today, August 14, 2020, the new Title IX regulations, enforced by the U.S. Department of Education (“DOE”), will go into effect. As discussed in our May 13, 2020 advisory on this topic, available here, the regulations have many new requirements for sexual harassment policies and procedures that need to be in effect by August 14, 2020.

Additionally, on August 3rd the Massachusetts Association of School Committees (“MASC”) published a revised version of Policy ACAB to adapt to the new Title IX regulations. After review of the MASC model, however, we believe that several revisions are required. The following are most significant:

  • The Policy should apply only to sexual harassment and not to harassment generally;
  • The Policy must contain timeframes for stages of the investigation process; and
  • The Policy must address Title IX complaints from employees.

We also advise that districts adopt the following components within the policy:

  • A “preponderance of the evidence” standard;
  • Limit appeals from determinations only to those that are required and that it not choose to allow appeals on other grounds, to avoid further entangling administrators in these procedures;
  • Do not grant full, trial-like hearings as permitted by the regulations; and
  • In addition to a Title IX Coordinator, the new regulations require a separate “decisionmaker” and a separate “investigator.” The policy ought to define who these people are and that generally the building Principal should be the “decisionmaker” and that the “investigator” should generally be the assistant Principal or other appropriate administrator.

School Committees will need to update their policies to conform to the new law which goes into effect on August 14th and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding this update, the new Title IX regulations, or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Federal Court Vacates Portions of FFCRA Regulations

Yesterday, a federal court vacated portions of the Families First Coronavirus Response Act (“FFCRA”) regulations.  In April, the U.S. Department of Labor (“DOL”) issued regulations interpreting the FFCRA, which provides paid leave time to employees impacted by COVID-19.  The New York Attorney General challenged portions of the regulations, and the matter proceeded to a U.S. District Court in New York.

Specifically, the court addressed the following parts of the FFCRA regulations:

  • The regulations contained a rule excluding benefits from employees whose employers did not have work available for them. The court vacated this exclusion.
  • The regulations defined a “health care provider” that could be excluded from FFCRA benefits. The court vacated this definition.
  • The regulations required that an employer consent to an employee’s request for intermittent leave. The court vacated this requirement.
  • The regulations required an employee to submit certain documentation ahead of being granted leave under the FFCRA. The court vacated this requirement.

We are monitoring this matter closely and await revised regulations from the DOL.  In the interim, employers should revise FFCRA leave practices consistent with the above changes.  For example, an employer should accept requests for intermittent leave, and should not require an employee to submit a written request for leave in order for the employer to consider providing such leave.

If you have questions regarding this advisory, addressing FFCRA leave going forward, or labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

DESE Permits 2020-2021 School Year Delay and Student Learning Time Reduction

The Massachusetts Department of Elementary and Secondary Education (“DESE”) is permitting school districts to delay the start of the 2020-2021 school year by 10 days but not later than September 16, 2020, reducing the student school days to 170 days from the current 180 day requirement for the 2020-2021 school year.  Waivers may be available for school districts that are unable to meet the September 16th start date.

School Committees are not required to reduce the number of student days in the 2020-2021 school year nor are they required to wait to begin classes until September 16th.  School Committees should  consult their superintendents and leadership teams to assess the needs of educators for additional training to be able to effectively and fully implement the remote and hybrid plans being designed and be prepared to engage with their unions over the number of student days for the upcoming school year.

If you have questions regarding this update, bargaining obligations associated with the reopening of schools for the 2020-2021 school year,  or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Reminder – New Title IX Regulations Going Into Effect in August 2020

On August 14, 2020, the new Title IX regulations, enforced by the U.S. Department of Education (“DOE”), will go into effect. As discussed in our May 13, 2020 advisory on this topic, available here, the regulations have many new requirements for sexual harassment policies and procedures that need to be in effect by August 14, 2020.

There is currently litigation pending to stay the implementation of these new regulations; however, it is unlikely that such litigation will be resolved prior to the date the new regulations are due to take effect.  Additionally, several organizations and school districts have asked the DOE to delay the implementation of these new regulations.  However, as of today, these requests have not resulted in a change to the August 14th effective date.

Therefore, absent a delay in the implementation date for these new regulations, which at this time seems unlikely, school committees will need to update their sexual harassment policies and procedures to bring them into compliance with these new regulations by August 14th.  In addition, the new regulations require training on the revised policies and procedures for all administrators serving as Title IX coordinators, investigators, and decision makers  Our office is available to review and update policies as well as to provide the required training for administrators.

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

Fall School Reopening Guidance

On June 25, 2020, the Commissioner of the Department of Elementary and Secondary Education released Initial Fall School Reopening Guidance. Please find the guidance here. If you have any questions, please contact us.