Pursuant to Governor Charles D. Baker’s March 25, 2020 order which requires all schools in the Commonwealth to remain closed until May 4, 2020, many districts are opting to engage in remote learning. While remote learning is an essential and helpful tool, it also poses unique challenges to school districts.

Many districts and their educators are concerned about violating federal copyright law when providing online resources to their students, including reading books through mediums such as Facebook Live or Zoom, or photocopying a book and distributing it to students. In response to these concerns, many publishers have modified their copyright policies. Those publishers can be found here:

https://www.schoollibraryjournal.com/?detailStory=publishers-adapt-policies-to-help-educators-coronavirus-covid19

Federal copyright law is violated when an individual uses an exclusive right without authorization from the individual or company that owns the rights. However, there is a four-factor test that may allow a teacher or district to engage in what would otherwise be considered a copyright violation, through the “fair use” exemption. The factors are:

• The purpose and character of the use;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the work as a whole; and
• The effect of the use on the potential market for or value of the copyrighted work.

See 17 U.S.C. §107.

Whether use is considered “fair” is a judgment made on a case-by-case basis and is a fact-intensive inquiry. It is also important to remind students and their families that they are also at risk of violating federal copyright law.

Districts should require all students and families engaged in remote learning to sign an agreement in which students and families agree to not record, reproduce or disseminate content. Please contact us if you would like assistance in drafting or reviewing such an agreement.

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

On March 18, 2020, President Trump approved House Bill 6201, titled the “Families First Coronavirus Response Act”.  Please see our earlier advisories regarding this new legislation that we sent on March 19, 2020 and March 20, 2020.  The law has two new acts: the “Emergency Family and Medical Leave Act” and the “Emergency Paid Sick Leave Act”.

The Department of Labor (“DOL”) recently issued two updates on this new legislation.  First, the DOL has moved up the effective date of the provisions of the Families First Coronavirus Response Act from Thursday, April 2, 2020 to Wednesday, April 1, 2020.

Second, the DOL produced a notice that covered employers must post in a conspicuous place, likely where other workplace posters are located.  Given that may physical workspaces in the Commonwealth are closed at this time, we recommend issuing the required notice electronically to employees and when possible posting it in the workplace.  A copy of the notice is on the second page of the advisory, and may also be obtained at:  https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.

Our office is continuing to monitor 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.

This morning, Massachusetts Governor Charles D. Baker issued an emergency order requiring all non-essential businesses to close their physical locations starting at noon on Tuesday, March 24, 2020 until April 7, 2020 at noon.  Additionally, all gatherings are now limited to ten (10) or fewer people.  The order also directs the Department of Public Health to issue a stay at home advisory outlining self-isolation and social distancing protocols.

The order is also accompanied by a detailed list of what constitutes essential services that may remain open– the list is available here: https://www.mass.gov/doc/covid-19-essential-services/download.  The category of essential businesses that can remain open includes:

• Health Care & Public Health
• Law Enforcement, Public Safety, and First Responders
• Food and Agriculture
• Critical Manufacturing
• Transportation
• Energy
• Water and Wastewater
• Public Works
• Communications and Information Technology
• Financial Services
• Defense Industry Base
• Chemical Manufacturing and Hazardous Materials
• Other Designated Community Based Essential Function and Government Operations
• News Media

As directed by the Governor our office will be closed; however, all of our attorneys will be working remotely and remain available to respond to our clients’ needs.  You can reach our attorneys on their cell phones or through our office main number at 617-862-2005 which will be staffed remotely by our administrative assistants.

We will continue to monitor federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

On March 18, 2020, President Trump approved House Bill 6201, titled the “Families First Coronavirus Response Act”.  The law has two new acts providing leave time: the “Emergency Family and Medical Leave Act” and the “Emergency Paid Sick Leave Act”.  Public employers and private employers with fewer than five hundred (500) employees must provide leave consistent with these Acts.

Emergency Family and Medical Leave Act

The Emergency Family and Medical Leave Act requires covered employers to provide up to twelve (12) weeks of job-protected leave for a qualifying need related to a public health emergency.  A qualifying need is restricted to cases where an employee is unable to work or telework due to a need to care for a minor child if that minor child’s school or care provider has been closed due to a public health emergency with respect to COVID-19 as declared by a federal, state or local authority.

The first ten (10) days[1] of leave under the Emergency Family and Medical Leave Act may be unpaid.  An employee may elect to utilize accrued paid leave time during the period of time that the employee would otherwise be unpaid.

The remaining leave time after the first ten (10) days shall be paid:

1. at a rate no less than two-thirds (2/3) the employee’s regular rate of pay;
2. for the number of hours the employee would otherwise be normally scheduled to work; and
3. no more than $200 per day and $10,000 in the aggregate.

If an employee’s work hours tend to vary from week to week, the employer shall use a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.  If the employee did not work over such 6-month period, the employer shall use the employee’s reasonable expectation at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Employers that are a party to a multiemployer collective bargaining agreement may, consistent with bargaining obligations, fulfill their obligations under the Emergency Family and Medical Leave Act by making contributions to a fund based on the hours of paid sick time each of its employees is entitled to receive.  This is likely a mandatory subject of bargaining if one or more Union requests to bargain over such a fund.

Employers with employees that are health care providers or emergency responders may elect to exclude such employees from the benefits of the Emergency Family and Medical Leave Act.

The Emergency Family and Medical Leave Act is set to expire on December 31, 2020.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act requires employers to provide paid sick time to employees unable to work or telework because:

1. The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above.
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. (As of the date of this advisory, there has yet to be a list of specified conditions published.)

Full-time employees are entitled to eighty (80) hours of paid sick time, and part-time employees are entitled to a number of hours equal to the number of hours that such employee works on average over a two (2) week period.  Paid sick time is capped at $511 per day or an aggregate of $5,110 for a use consistent with paragraphs 1, 2 , and 3 above, and $200 per day and $2,000 in the aggregate for a use consistent with paragraphs 4, 5, and 6 above.  Employers cannot require an employee to exhaust other paid leave before using the paid sick time under this Legislation.

Employers will also be required to post a notice containing the requirements of this Act in a conspicuous place.  The Secretary of Labor will publish this notice.  (As of the date of this advisory, the Secretary of Labor has not yet published the required notice.)

Employers that are a party to a multiemployer collective bargaining agreement may, consistent with bargaining obligations, fulfill their obligations under the Act by making contributions to a fund based on the hours of paid sick time each of its employees is entitled to.  This is likely a mandatory subject of bargaining if the Union requests to bargain over such a fund.

The Emergency Paid Sick Leave Act is set to expire on December 31, 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.

[1] Although the statute is ambiguous as to whether these are work days or calendar days, it is likely that the days will be considered to be work days. Please consult a VDH attorney with specific inquiries.

In light of the recent state of emergency and outbreak of COVID-19, Governor Charlie Baker issued an Executive Order on March 12, 2020 modifying the requirements of the Open Meeting Law, G.L. c. 30A, § 20.

At this time, public bodies are authorized to permit remote participation by all members in the public body, and public bodies are not required to have a quorum and the chair physically present at a specified meeting location.  A quorum may be achieved with members participating remotely.

Public bodies are not required to conduct meetings in a public place.  If a public body chooses not to conduct a meeting in a public place, it must provide adequate, alternative means of public access to its deliberations.  This includes, but is not limited to, meetings via telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body while they are occurring.  The public body may not charge for access to proceedings conducted through these alternative means.

If a public body faces economic hardship and cannot provide such alternative means despite best efforts, the public body may instead post on its municipal website a full and complete transcript, recording, or other comprehensive record of the proceedings as soon as practicable after the meeting concludes.  This exception does not apply to proceedings that require the allowance of active participation by members of the public pursuant to a general law, special law, regulation, local ordinance or by-law, such as a public hearing or Town Meeting.

The order remains in effect until it is rescinded or the state of emergency is terminated, whichever happens first.  Our office is closely monitoring for further developments related to COVID-19, and will provide further updates as available.

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