U.S. Department of Education (DOE) Approves Massachusetts Waiver Required for ESSA Grants and DESE Releases Grant Guidance

On April 8, 2020, the Department of Elementary and Secondary Education (DESE) received approval from the DOE for specific waivers offered under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Massachusetts was granted numerous waivers including:

  • Fiscal Year 2019 ESSA funds may be used until September 30, 2021;
  • DESE may waive the 15% carryover limit on Title I funds;
  • Decreased demands under Title IVA; and
  • Definition of “Professional Development” is waived under Title IIA and districts are permitted to “conduct time-sensitive, one-time or stand-alone” professional development opportunities to “help educators provide effective distance or remote learning”.

DESE expects additional waivers from DOE in the coming weeks and months. Districts are encouraged to read the guidance in full at the link below:

http://www.doe.mass.edu/covid19/on-desktop.html

DESE Grants

The Department of Elementary and Secondary Education (DESE) has also released guidance regarding grant program expenditures. Among the guidance, DESE stated the following regarding the status of DESE grants during the emergency school closure:

  • Active grants may continue to be used to pay for salaries and benefits, “consistent with the recipient organization’s policy of paying salaries”.
  • Grants may be used to pay for “Other costs…necessary to resume activities supported by the award, consistent with applicable cost principles and the benefit to the project”.
  • Generally, there is a rule regarding line item amendments which requires approval 30 days prior to need. This requirement has been lifted. Expenditures should “still fall within the allowable costs and program parameters”.

DESE also created a Frequently Asked Questions document regarding grants. Districts are encouraged to review this guidance and the FAQs in their entirety. The FAQ and the guidance can be found at the link below:

http://www.doe.mass.edu/covid19/finance-hr.html

If you have questions or concerns, please contact any of our attorneys.

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

Federal Government Passes CARES Act to Address COVID-19 Crisis

On March 27, 2020, the federal government passed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act responsive to the current COVID-19 epidemic.  The Act affords economic relief to individuals, small businesses, hospitals and public health facilities, food security efforts, state and local governments, and education.

State and Local Governments

The Act designates funding to state and local governments for COVID-19 response programs, as well as direct financial aid for government entities which may run out of cash due to a high number of COVID-19 cases.

Economic Relief for Businesses

The Department of the Treasury can provide forgivable loans and investments to businesses.  We expect more information to follow as to the process by which businesses will be able to apply for such loans.

The Act also established a tax credit for businesses that are closed or suffering in order to keep workers on payroll.  The credit covers up to fifty percent (50%) of payroll on the first $10,000 of compensation, including health benefits, for each employee.

Insurance Coverage

The Act requires private insurance plans to cover COVID-19 treatments and vaccines, and to make all testing for COVID-19 free of charge.

Economic Payments for Individuals and Families

The Act offers payments to single and married couples as follows:

Individuals with an adjusted gross income of $75,000 or less are entitled to a one-time cash payment of $1,200.  For individuals with an adjusted gross income of $75,000 to $99,000, this amount decreases.  Individuals with an adjusted gross income greater than $99,000 are not entitled to a payment.

Married couples with an adjusted gross income of $150,000 or less are entitled to a one-time cash payment of $2,400.  For married couples with an adjusted gross income of $150,000 to $198,000, this amount decreases.  Married couples with an adjusted gross income greater than $198,000 are not entitled to a payment.

Individuals and married couples with children under the age of seventeen (17) years old are entitled to a payment of $500 per child.

The adjusted gross income is based on either 2018 or 2019 tax filings – whichever is most recent.

Unemployment Benefits

Under the Act, states may enter into an agreement with the federal government permitting individuals receiving unemployment benefits to receive an additional payment of $600 each week.  If such an agreement is reached, it will expire no later than July 31, 2020.

Food Assistance

The Act provides additional funding for food banks, the Supplemental Nutrition Assistance Program and the Child Nutrition Program.

Education

The Department of Education will suspend payments due on federal student loans until September 30, 2020.  Additionally, employers may provide up to $5,250 in tax-free student loan repayment benefits.

Additionally, students forced to drop out of school as a result of COVID-19 will not have time away from school deducted from lifetime limits on subsidized loan and Pell grant eligibility, and will not be asked to pay back grants or aid they have already received.

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.

Department of Labor Issues Guidance on Families First Coronavirus Response Act

The Department of Labor (“DOL)” recently issued guidance addressing the exclusion of health care providers and emergency responders from the benefits of the Families First Coronavirus Response Act (“FFCRA”) and an exemption for small business.

Health Care Providers and Emergency Responders

An employer may exclude health care providers and emergency responders from: (a) family and medical leave under the Emergency Family and Medical Leave Expansion Act; and (b) paid sick leave under the Emergency Paid Sick Leave Act.

The DOL defines a health care provider as “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”  To minimize the spread of COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”

The DOL defines an emergency responder as “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”  To minimize the spread of COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.”

Accordingly, employers may exclude health care providers and emergency responders from family and medical leave under the Emergency Family and Medical Leave Expansion Act and/or paid sick leave under the Emergency Paid Sick Leave Act.

Small Business Exemption

The DOL guidance provides that an employer with fewer than 50 employees is exempt from the provisions of the Act if an authorized officer of the business has determined that at least one of the following situations applies:

  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.

It does not appear that a small business needs to obtain this exemption from the DOL or another agency and based on the current guidance it appears that a small business may make this determination on its own.

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

COVID-19 and Copyright Concerns

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.

Remote Learning Update

On March 26, 2020, the Massachusetts Department of Elementary and Secondary Education issued guidance for school administrators regarding remote learning during the COVID-19 school closures. This guidance was sent to all Massachusetts superintendents and can be found here.  2020-0326 remote-learning

Updates to Families First Coronavirus Response Act

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.

Governor Extends School Closure Date

Earlier today, Governor Charles D. Baker modified an executive order that previously closed public schools, private schools and non-emergency daycare centers until Monday, April 6, 2020.  Under the new order, schools and non-emergency daycare centers will remain closed until at least Monday, May 4, 2020.

Governor Baker emphasized that during this closure, the Department of Elementary and Secondary Education (“DESE”) would work with school districts to further develop remote learning and educational programming.

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.

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

Governor Orders Closure of All Non-Essential Businesses

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.

Additional Information Regarding The “Families First Coronavirus Response Act”

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

The following employers must provide leave consistent with these Acts:

  • All public employers; and
  • Private employers with fewer than five hundred (500) employees.

The Emergency Family and Medical Leave Act and the Emergency Paid Sick Leave Act shall take effect no later than fifteen (15) days after they were enacted.  The Acts were enacted on March 18, 2020; therefore they will take effect no later than April 2, 2020.  At this time, the government has not taken any action to make them go into effect earlier than April 2, however that may change.

Furthermore, we are awaiting the following from the U.S. Department of Labor:

  • Guidance as to which health care providers and emergency responders may be excluded from the provisions of the Emergency Family and Medical Leave Act; and
  • A notice to containing the requirements of the Emergency Paid Sick Leave Act that covered employers must post.

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.

Federal Government Passes “Families First Coronavirus Response Act”

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.