On March 18, 2022, the Massachusetts Supreme Judicial Court issued a decision, Lexington Public Schools v. K.S., holding that pursuant to G.L. c. 119, § 39E, the Child Requiring Assistance (CRA) statute, non-attorney school personnel are authorized to file Juvenile Court petitions concerning students. The issue before the court was whether an assistant principal committed unauthorized practice of law when he filed, on behalf of a school district, a petition under the CRA asserting that a twelve-year-old child needed assistance because of his excessive and willful absences.

In April of 2021, a middle school assistant principal and attendance supervisor filed a CRA petition in the Juvenile Court after a twelve-year (12) old child failed to attend school for forty-eight (48) days that school year, and his family had not participated in a truancy prevention program. After the Juvenile Court judge accepted the petition, counsel for the child moved to dismiss the petition on the ground that the assistant principal, as a non-attorney, was engaging in the unauthorized practice of law. The Juvenile Court judge denied the motion to dismiss, reasoning that the Legislature has authorized school officials to file CRA petitions.

Generally, non-lawyers are prohibited from practicing law to protect the public welfare, and courts enjoy broad discretion in defining the practice of law. Nevertheless, courts have traditionally given substantial deference to the views of the legislature on issues of unauthorized practice of law. Under the express language of the CRA, “a school district may initiate an application in [the Juvenile Court] stating that [a] child is not excused from attendance in accordance with the lawful and reasonable regulations of such child’s school…” M.G.L. c. 119 § 39E. Similarly, c. 76 § 20 says “Supervisors of attendance… may apply for petitions under the provisions of section thirty-nine E of chapter one hundred and nineteen.” In Lexington Public Schools, the court found that, in passing these laws, the Legislature intended to allow non-lawyers to apply for CRA petitions and that the Juvenile Court should provide materials to help them during their appearance. Further, CRA proceedings are intended to be relatively informal because, in 2012, the Legislature replaced the children in need of services statute with the CRA with the express goal of making the proceedings “less adversarial.” Accordingly, the Court held that school personnel – as well as parents, custodians, and legal guardians – do not engage in the unauthorized practice of law when they file a CRA petition.

However, the Court declined to go any further than the issue presented and did not provide a precise definition of the practice of law, recognizing the difficulty in doing so. Instead, the court reaffirmed previous holdings that a determination whether an individual’s actions constitute “practicing law” is a fact-specific inquiry.

If you have any questions regarding the filing of CRA petitions, please contact us.  We are pleased to assist school administrators in addressing truancy concerns and navigating the CRA petitions process.

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

Last year, the Massachusetts legislature passed “An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave.” The Act requires all private and public employers within Massachusetts to offer employees leave time for COVID-19 related issues.

The program under the Act is scheduled to end on April 1, 2022, or earlier if the Commonwealth determines that the allocated budget is nearing exhaustion. If the program will be terminated before April 1st, the Commonwealth will provide fifteen (15) days’ notice to employers, and establish a run-out period to allow employers to finish their reimbursement submissions. Employers with unionized workforces should review all applicable agreements with unions as those agreements may provide benefits that go beyond April 1, 2022.

The Act operates as follows:

Qualifying Reasons for Leave

Employers are required to provide emergency paid sick leave to employees who are unable to work for one or more of the following reasons:

1. An employee’s need to:
a. self-isolate and care for themself because they have been diagnosed with COVID-19;
b. get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
c. get or recover from a COVID-19 immunization;

2. An employee’s need to care for a family member who:
a. must self-isolate due to a COVID-19 diagnosis; or
b. needs medical diagnosis, care, or treatment for COVID-19 symptoms;

3. A quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;

4. An employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or

5. An employee’s inability to telework due to COVID-19 symptoms.

A “family member” under the Act is defined as an employee’s spouse/domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of a spouse, or a person who stood in loco parentis to the employee when such employee was a minor child.

Employers may not require employees to use other types of available paid leave in lieu of this emergency paid sick leave, and may not require an employee to search for or find a replacement worker to cover the time that the employee will miss while on leave provided by the Act.

Increment of Leave

1. For employees who work 40 or more hours per week, the employer must provide 40 hours of emergency paid sick leave.

2. For employees who regularly work less than 40 hours per week, employers must provide leave in the amount equal to the average number of hours that such employee works per week.

3. For employees with varying weekly hours employers must provide leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous 6 months.

4. For an employee who has not been employed for at least 6 months and has a schedule where weekly hours vary, the employer must provide leave equal to the number of hours per week that the employee reasonably expected to work when hired.

5. The maximum an employer is required to pay an employee per week and seek in reimbursement is $850.00, including costs of benefits.

Employee Requests for Leave

Employers who seek reimbursement from the Commonwealth must require their employees to submit requests for emergency paid sick leave in writing. The state created a form for employers to use in obtaining that information, which is available at: https://www.mass.gov/info-details/covid-19-temporary-emergency-paid-sick-leave-program. The form must contain the following information:

1. The employee’s name;

2. The date(s) for which leave is requested and taken;

3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and

4. A statement that because of the COVID-19 related reason the employee is unable to work or telework.

For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include:

1. The name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and

2. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

All employee health information gathered is to be treated as confidential, subject to applicable state and federal law. No health information should be disclosed to any third parties without express permission from the employee.

Reimbursement Protocol

In anticipation of applying for reimbursement, the state has advised that employers should collect and retain the following information:

1. The employee’s social security or tax identification number;

2. The employer’s identification number associated with the position from which the employee took leave;

3. The length of the leave (in hours) and wages paid during that leave that are not eligible for federal tax credits, and are not otherwise paid under any other government program or law;

4. Benefits applicable to the employee taking leave; and

5. The number of hours in the employee’s regular schedule, or: (A) if the employee has no regular schedule, the hours that the employee was scheduled to work per week over the 6-month period immediately preceding the date on which such employee takes the emergency paid sick leave, including hours for which such employee took leave of any type; or (B) if the employee did not work over such 6-month period, the number of hours the employee reasonably expected to work at the time that the employee was hired or the average number of hours per week that the employee would normally be  scheduled to work.

Retaliation Prohibition

Employers may not interfere with an employee’s ability to use the emergency paid leave under the Act or retaliate against an employee for exercising the rights described above. This includes considering the use of the emergency sick leave as a negative factor in any employment action or taking an adverse action against an employee because the employee supports the exercise right of another employee.

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

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

On Monday, December 27, 2021, the Centers for Disease Control and Prevention (“CDC”) shortened its recommended isolation time for individuals exposed to COVID-19. Guidelines now recommend that individuals who are unvaccinated or have not received the vaccine booster quarantine for five (5) days, followed by strict mask use for an additional five (5) days. Individuals who have received their vaccine booster do not need to quarantine following an exposure but should wear a fitted mask for the ten (10) days following the exposure. For all individuals who have been exposed, the CDC advises that best practice is to receive a test five (5) days after the initial exposure.

As part of its update, the CDC also reduced the quarantine period for individuals who have tested positive for COVID-19 but are asymptomatic from ten (10) days to five (5) days. If individuals remain asymptomatic following the five (5) day isolation period, they may leave quarantine if they continue to mask for five (5) days. Massachusetts has adopted CDC guidelines as follows:

• Isolation: Individuals who test positive for COVID-19, regardless of vaccination status, must isolate for five (5) days. If, after those five (5) days individuals remain asymptomatic or symptoms are resolving, they may leave isolation if they continue to mask for five (5) days.
• Quarantine: Individuals exposed to COVID-19 who are asymptomatic and have received the COVID-19 booster or have completed the primary series of the Pfizer or Moderna vaccine within the last six months do not need to quarantine following an exposure. In lieu of quarantine, however, individuals must wear a fitted mask for the ten (10) days following the exposure and, if possible, receive a test five (5) days after the initial exposure.
• Quarantine: Individuals exposed to COVID-19 who are asymptomatic but are unvaccinated or are eligible for the booster and have not yet received it should quarantine for five (5) days, followed by strict mask use for an additional five (5) days. If quarantine is not possible individuals must wear a mask for ten (10) days. If possible exposed individuals should receive a test five (5) days after the initial exposure.

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

This past June the Supreme Court issued a landmark decision regarding student speech rights in the digital age. In Mahanoy Area Sch. District v. B.L., No. 20-255 (2021), the Court applied the half-century-old decision in Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), which governs student speech rights under the First Amendment, to student speech that occurs “off campus”/remotely by using modern electronic technology/social media. The Court held that schools have “less leeway” to regulate such speech than they do regarding speech that takes place in the school or during school programs. The Court therefore ruled that the school district had violated a student’s rights under Tinker when it suspended her for a post on Snapchat which took place at a remote location, did not target any specific students or school staff, and was limited to a vulgarity-laced rant about the school’s cheerleading program. In its opinion, however, the Mahanoy Court left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference” and suggested several areas in which discipline for off-campus speech by students may still be appropriate under the First Amendment. These include speech that involves “serious or severe bullying or harassment targeting particular individuals”.

The United State Court of Appeals for the First Circuit has now issued the first federal appellate decision in the country applying Mahanoy to “off campus” speech. On November 19, 2021, the court decided Doe v. Hopkinton Public Schools, No. 20-1950 (1^st Cir. 2021), a case in which attorney John Foskett of Valerio Dominello & Hillman LLC worked with the National Association of School Boards to file an amicus brief.

In Doe, several members of a Snapchat group and the school’s hockey team had demeaned another student in Snapchat posts and at team events, causing the student to refuse to try out for another sport, to withdraw from a chosen class, and ultimately to transfer from the school. Suspensions ensued based on violation of the Massachusetts Anti-Bullying law, G.L. c. 71, §37O. Two students who had only been involved in the “off campus” Snapchat posts filed suit claiming a violation of their speech rights under the First Amendment and under the Massachusetts Student Speech statute, G.L. c. 71, § 82. The district court rejected their claims and, in its decision on appeal, the Court of Appeals has affirmed the judgment and has upheld the discipline.

Applying Mahanoy’s interpretation of Tinker, the Doe court ruled that “schools have a special interest in regulating speech that involves ‘the invasion of the rights of others’” and that “[t]his pedagogical interest remains even in off-campus circumstances.” The court distinguished the “general statement of discontent” in Mahanoy, finding it “qualitatively different from bullying that targets and invades the rights of an individual student.” The court next rejected the students’ argument that their minimal role of merely posting on the Snapchat site immunized their conduct. Pointing out that bullying is often a group activity, the court held that the school “reasonably concluded” that the plaintiffs’ activity “emboldened the bullies and encouraged others in the invasion of [the target’s] rights”. It ruled that “speech that actively encourages … direct or face-to-face bullying conduct is not constitutionally protected” and that “[t]he test under Tinker is objective, focusing on the reasonableness of the school’s response, not the intent of the student.”

The plaintiffs also claimed that their speech was protected under G.L. c. 71, § 82 because that statute uses language suggesting that only speech that “disrupts” the school may be regulated, which is similar to language that was used in Tinker. The court disagreed. It pointed out that the Massachusetts statute was enacted well before adoption of the bullying statute in § 37O and that the latter contains additional language that also was used in Tinker, proscribing conduct that “‘infringes on the rights of the victim at school’”. The court refused to interpret § 82 in a way such that it would “conflict directly with” § 37O or that would render the bullying law “meaningless.”

Doe is significant because it is the first federal appellate decision in the country that addresses “off campus” speech by students in light of the Supreme Court’s Mahanoy ruling. Importantly, it confirms that at least some such “off campus” speech can be the basis for student discipline without violating the First Amendment. As suggested in Mahanoy, whether that speech in a given situation may be regulated will depend to a great extent on the specific facts – such as whether it sufficiently constitutes a “threat of harm”, “harassment”, or “infringes on the rights” of another student. Administrators should consult with school district counsel when these issues arise.

If you have any questions regarding the content of this update, please contact us.

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