CDC Relaxes Guidelines on Masks In School

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On July 9, 2021 the CDC updated its guidance for schools, saying that only individuals who are not fully vaccinated need to wear masks while indoors and directed all schools to reopen, even in areas where community transmission of COVID-19 is elevated. Additionally, in general people do not need to wear masks when outdoors (i.e., participating in outdoor play, recess, and physical education activities). Where the needs of the community so require, however, the guidelines do allow school administrators to opt to make mask use universally required, regardless of vaccination status.

According to the CDC, reasons can include:

  • Having a student population that is not yet eligible for vaccination (i.e., schools with grades prekindergarten – 6).
  • Increasing or substantially high COVID-19 transmission within the school or surrounding area.
  • Increasing community transmission of a variant that is spread easily among children or adolescents.
  • Lacking a system to monitor the vaccine status of students and/or teachers and staff.
  • Difficulty monitoring or enforcing mask policies that are not universal.
  • Awareness of low vaccination uptake within the student, family, or teacher/staff population or within the community.
  • Responding to community input that many teachers, staff, parents, or students would not participate via in-person learning if mask use is not universal.

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

Federal Court Rules Against Teacher Who Refused to Use Transgender Students’ Preferred Pronouns

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On July 12, 2021, a federal judge in Indiana ruled against a former teacher who alleged that his employer, a local high school, discriminated against him when it requested his resignation after the teacher continuously refused to call transgender students by their chosen names and pronouns.

The Indiana case was precipitated by the school district’s adoption of a policy that allowed transgender students to change the first names and pronouns listed in their school records and required all staff to address students accordingly. In response to the new policy, an orchestra teacher wrote a letter to his principal stating that he could not follow the name policy due to his religious beliefs. In an attempt to accommodate the teacher, school administrators proposed that the teacher call all students by their last names only and without any gender-based titles, such as Miss or Mr. The accommodation resulted in an undue hardship to the school and evidence demonstrated that at least two students suffered because of the last-names only accommodation. Ultimately, the school could not continue the accommodation and requested the teacher’s resignation.

Following his resignation in May of 2018, the teacher asserted thirteen allegations against the school and several of its employees, including a claim that the school discriminated against him by refusing to accommodate his religious belief that prohibited him from using a transgender student’s preferred name and pronouns. The majority of those claims were dismissed, leaving only the teacher’s claims against the school for failure to accommodate and retaliation under Title VII for the teacher’s religious beliefs. The court ruled in favor of the school on both claims.

The court held that the teacher’s religious opposition to transgenderism was directly at odds with the school’s policy of respect for transgender students. Therefore, as a matter of law, the school could not accommodate the teacher’s religious beliefs. Quoting Shakespeare, the court wrote “[w]hat’s in a name? William Shakespeare suggested maybe not much, for ‘that which we call a rose, by any other name would smell as sweet.’ But a transgender individual may answer that question very differently, as being referred to by a name matching one’s identity can provide a great deal of support and affirmation.”

The Indiana decision is the most recent in a line of cases brought by teachers who claim they were unfairly disciplined for refusing to use the preferred names or pronouns of transgender students. In Massachusetts, DESE has published guidance for Massachusetts public schools on creating a safe and supportive school environment. On the issue of names and pronouns DESE advises that school personnel should use the student’s chosen name and pronouns appropriate to a student’s gender identity, regardless of the student’s assigned sex at birth.

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

Supreme Court Denies New Hampshire Income Tax Lawsuit

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On June 28, 2021, the U.S. Supreme Court declined to hear a lawsuit filed by the State of New Hampshire asserting that a pandemic-era Massachusetts’s income tax policy was unconstitutional. At issue was a temporary tax rule adopted by Massachusetts that sought to maintain the pre-pandemic status quo for filing obligations, and thereby spare Massachusetts employers of additional compliance burdens. Under the rule, non-resident employees who worked in Massachusetts before the state of emergency continued to be taxed in the same proportion as during the immediate pre-pandemic period, regardless of whether employees completed work in-person or remotely. The Supreme Court denied New Hampshire’s motion for leave to file bill of complaint.

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

Supreme Court Issues Important Decision Ruling that a Student’s Suspension from Cheerleading Based on Her “Off-Campus” Snapchat Post Violated the First Amendment but Also Indicating that Some “Off-Campus” Speech – Such as Bullying or Harassment – May be Regulated

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The Specific Parameters Remain to be Developed in the Lower Courts, Including a Pending Cyberbullying Case in which VDH, Working with the NSBA, has Filed a Brief. 

 

More than 50 years ago, the Supreme Court issued a landmark decision regarding student speech rights. In Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), the Court made its famous pronouncement that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Recognizing the need for discipline and a focus on learning in schools, the Court identified two circumstances in which regulation/discipline would be appropriate: (1) where a student’s speech causes “material and substantial disruption” of the school, and (2) where the speech “infringes or interferes with” the “rights” of others.

In 1969, the internet, cell phones and social media were all decades in the future and few could even imagine how a student’s speech made from a location outside the “schoolhouse gate” – “off campus” – could nonetheless permeate the school community and affect other students. For the past two decades, the lower courts have wrestled with the task of applying Tinker to a culture in which student speech increasingly takes place through electronic media used in remote locations.

On June 23, 2021 the Court finally applied Tinker to the digital age in Mahanoy Area Sch. District v. B.L., No. 20-255 (2021). The decision is important but, not surprisingly, precise guidance for lower courts and for school districts is limited. The case decided by the Court involved one student’s post on Snapchat. It 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. There was no evidence that it had any effect on the school’s learning environment. Notwithstanding this, the school district imposed upon the student a one-year suspension from the cheerleading program. Based on these facts, the Court in an 8-1 decision held that the school’s one-year suspension of the student from cheerleading activities violated her First Amendment rights.

More important than the Court’s holding in the specific case is the Court’s further statement that “the special characteristics that give schools additional license to regulate student speech [do not] always disappear when a school regulates speech that takes place off campus.” Recognizing that certain attributes of student speech outside the school or its programs mean that schools have less “leeway” in regulating that speech, the Court has left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference.” But the Court nonetheless suggested several areas in which discipline for off-campus speech by students will still be appropriate under the First Amendment.

These include speech that involves “serious or severe bullying or harassment targeting particular individuals”, “threats aimed at teachers or other students”, and “failure to follow rules” pertaining to “online school activities.”  The Court declined to “determine precisely…the length or content of any such list of appropriate exceptions or carveouts.” The precise parameters that govern school districts’ application of Tinker to “off-campus” speech now await explication by the lower courts.

One such case is currently pending in the United States Court of Appeals for the First Circuit – Doe v. Hopkinton Public Schools, No. 20-1950. In that case 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 tangentially involved in the Snapchat posts filed suit claiming a violation of their student speech rights, but the federal district court rejected their claim, resulting in further appeal. The case has been briefed and awaits oral argument and eventual decision.

VDH attorney John Foskett has worked with the National School Boards Association in Doe v. Hopkinton Public Schools and has filed an amicus curiae (“friend of the court”) brief that urges the court to uphold the school’s discipline. In the brief, we have focused on the “second prong” in the Tinker decision, which recognizes a school’s authority to regulate student speech that infringes another student’s rights in school. The brief argues that this prong of Tinker clearly permits schools to prevent and punish cyberbullying and its harmful impacts even though the speech generally occurs “off campus.” The brief, which was filed in May 2021, asserts that the lower court’s decision in B.L. did not bar or limit a school’s power to regulate off campus speech that constitutes bullying or harassment. It now appears that the Supreme Court has expressly agreed that this is a permissible area for discipline without violating a student’s speech rights. As noted, the precise contours of that authority must be worked out on a case-by-case basis. Doe v. Hopkinton Public Schools appears likely to be one of the first federal appellate decisions to address the meaning of B.L. in this context.

As further guidance is developed, school districts must keep the following in mind before a student is disciplined for statements made on social media:

Student speech that can be regulated if it takes place during school or school programs may not be subject to discipline if it is made outside school hours and “off campus” unless it fits certain criteria, such as cyberbullying, harassment, or threats that target a specific student/students or staff.

Decisions regarding student discipline for speech that occurs outside of school should be made after consultation with the district’s legal counsel.

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

Massachusetts Legislature Passes Remote Meeting Bill

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On Wednesday, June 16, 2021, Governor Baker signed “An Act Relative to Extending Certain COVID-19 Measures Adopted During the State of Emergency” into law. This bill extends remote open meeting measures that had been in place under the “Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, § 20,” until April 1, 2022.

Like its predecessor executive order, which expired on June 15, 2021, the bill allows public bodies to elect to meet remotely. The chair, and quorum of the public body, are not required to be physically present at a specified meeting location.  Public bodies that do elect to conduct open meetings on a remote basis must continue to enable members of the public with visual and audio access to meetings. Additionally, remote meetings that were conducted between June 15, 2021 and the signing of the bill on June 16, 2021 are retroactively held to the requirements of the new bill.

If you have any questions regarding the content of this update, or any other questions regarding the open meeting law, please contact us.

Remote Open Meeting Bill Remains Pending in Massachusetts Legislature

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The Massachusetts state of emergency will lift at 12:01 am on Tuesday, June 15, 2021.  This will also render the current executive order permitting remote open meetings, “Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, § 20”, ineffective and void.

On May 25, 2021, Governor Baker filed “An Act to Temporarily Extend Certain Measures Adopted in the State of Emergency” which would extend the remote open meeting measures through September 1, 2021.  While the Senate has approved the legislation, it currently remains in the House for approval, and their next session is scheduled on Monday, June 14th.  Accordingly, the House will not be taking any action on this today (June 11th), and may not through next week (June 14th – June 18th).

Public bodies with open meetings scheduled for Tuesday, June 15th and days going forward should be prepared for potential in person meetings should the House fail to take immediate action on this bill.  In so preparing, a public body should determine whether it has adopted a remote participation policy – if so, only a quorum of the public body need be physically present at the meeting location.  We recommend that a public body assess its technology needs in conducting a meeting in this capacity.  If a public body does not have such a policy, it should be prepared for all public body members to be physically present at the meeting location.  In all cases, a public body still needs to enable members of the public with visual and audio access to the meeting.

Our office is continuing to monitor the status of this legislation and will provide timely updates as they become available.

If you have any questions regarding the content of this update, or any other questions regarding the open meeting law, please contact us.

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

Massachusetts Legislature Enacts COVID-19 Emergency Paid Sick Leave Act

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On May 28, 2021, 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. This mandate is in effect from May 28, 2021 until September 30, 2021, or the exhaustion of the $75 million dollars allocated by the legislature, whichever is earlier.

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:
    • self-isolate and care for themself because they have been diagnosed with COVID-19;
    • get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
    • get or recover from a COVID-19 immunization;
  2. An employee’s need to care for a family member who:
    • must self-isolate due to a COVID-19 diagnosis; or
    • 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 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 is expected to draft a form for employers to use in obtaining 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.

COVID-19 Update: Governor Baker Lifts State of Emergency; Massachusetts to Remove Majority of Restrictions

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Governor Charlie Baker recently announced that effective May 29, 2021, the majority of Massachusetts’ COVID-19 restrictions will end. Specifically, Governor Baker announced that the current mask mandate will be removed and masks will be required only in certain settings:

  1. Childcare programs;
  2. K-12 public schools, special education schools, and as otherwise required by the Department of Elementary and Secondary Education;
  3. Settings hosting vulnerable populations, including congregate care settings such as nursing homes;
  4. Healthcare facilities;
  5. Transportation systems, including busses and rideshares.

Pursuant to guidance issued on May 17, 2021, by the Department of Elementary and Secondary Education, students are no longer required to wear masks outdoors, even if distance cannot be maintained. Adults, including staff, will continue to be required to wear masks outdoors where distancing cannot be maintained.

After May 29, 2021, municipalities may still require masks to be worn within the municipality.

Governor Baker further stated that effective June 15, 2021, Massachusetts will no longer be in a state of emergency due to the COVID-19 pandemic.

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.

Appeals Court Discusses Employer Due Process in MCAD Proceedings

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On May 13, 2021, the Appeals Court issued a decision, 15 LaGrange Street Corporation, et al. v. Massachusetts Commission Against Discrimination, et al, (20-P-726) vacating a Superior Court decision finding that a Complainant properly claimed to be terminated on the basis of race which accordingly put the respective Respondents on notice of the claim.

In 2011, the Complainant filed a charge with the Massachusetts Commission Against Discrimination (“MCAD”) alleging that he was terminated in retaliation for raising safety concerns to his employer.  Without so stating, the Complainant also indicated in his charge that he was treated less favorably than coworkers of a different protected class.  MCAD found probable cause to credit the allegations, and certified the matter for a public hearing.

Ahead of the hearing, the parties submitted their positions to the MCAD, of which the Complainant echoed his claims from the charge and seemingly indicated that he was terminated because of his race.  The Respondents countered that it would be improper for the race-based termination claim to be heard where it was not previously alleged in the investigation process.  Despite this, during this hearing, Complainant alleged that “race played some role in the decision to terminate…”  The Hearing Officer agreed, and the Respondents sought further review from the MCAD Commissioners and Superior Court, arguing that they were deprived of meaningful notice and ability to respond to the claim.  The MCAD Commissioners and Superior Court affirmed the decision, and the matter was brought to the Appeals Court.

The Appeals Court concluded that the initial charge, “even read indulgently, did not provide fair notice of a claim of racially motivated termination…[n]owhere in [the] complaint, however, did [complainant] allege that he was terminated because of his race.”  While the Complainant and the MCAD acknowledged that this may be true, they contended that other parts of the investigation process provided the Respondents proper notice of the claim.  Complainant and MCAD argued that (1) Complainant’s deposition testimony sufficiently addressed his race-based termination claim; and (2) the MCAD’s investigation process allows it to infer claims where the facts permit.  These arguments were unpersuasive and rejected by the Appeals Court, which held that the Respondents were deprived of due process where notice of the claim was wholly inadequate.

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.

Liz Valerio and Nick Dominello to Present at 2021 Massachusetts Association of School Business Officials (“MASBO”) and Massachusetts Association of School Personnel Administrators (“MASPA”) Annual Law Day

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On Tuesday, April 13, 2021 Liz and Nick will present at the MASBO/MASPA Annual Law Day webinar.  Liz and Nick will be discussing trends in collective bargaining and COVID related concerns including vaccine rollout, remote learning options in the future and ongoing expectations for families and staff.