On April
14, 2020, Governor Phil Murphy signed into law P.L. 2020, c. 27, which amends
Title 18A to address many of the issues that school districts and charter
schools are facing while schools in New Jersey are closed due to
COVID-19. The law is effective immediately, and is available here.
The new
law addresses health-related closures of school districts, charter schools, and
other public schools for longer than three consecutive school days as the
result of a declared state of emergency, declared public health emergency, or a
directive by the appropriate health agency or officer. Highlights are
summarized below.
Virtual
instruction and 180-day school year. Requires
the Commissioner of Education to allow public schools to apply one or more days
of virtual or remote instruction towards the 180-day school year requirement
when a school district or charter school is required to close for more than
three consecutive days due to a declared state of emergency or public health
emergency.
When the
State or a local health department mandates school closures, the superintendent
or lead person has the authority to implement virtual or remote instruction,
and shall consult with the board of education/trustees prior to that decision
if practical.
Boards of
education and charter school boards of trustees must approve and submit their
proposed programs of virtual or remote instruction to the Commissioner within
thirty days of April 14, 2020, or by May 14, 2020. Plans must be
re-submitted annually.
The
Commissioner of Education will develop guidance for virtual and remote learning
that provides school districts with information on providing access to students
who lack technology, the required length of an instructional day, school meal
programs, and the schedule for administering State assessments.
Special
education and related services. Public schools must
continue to provide the same educational opportunities to students with
disabilities as are provided to students without disabilities. Special
education services including speech language, counseling, physical therapy,
occupational therapy, and behavioral services may be provided electronically or
virtually as required by a student’s Individualized Education Program, “to the
greatest extent practicable.”
Approved
private schools for students with disabilities. The
Act contains provisions for approved private schools similar to the provisions
that apply to public schools regarding virtual instruction, the 180-day school
year, provision of special education and related services, and reporting to the
Commissioner.
Employee
rights. Employees who are covered by a collective negotiations
agreement are entitled to “compensation, benefits and emoluments” as provided
in the collective negotiations agreement as if the schools remained open for
any purpose, and for any time lost as a result of school closures or use of
virtual or remote instruction. Additional compensation, benefits and
emoluments may be negotiated for additional work performed. Employees who
are not covered by a collective negotiations agreement are entitled to
“compensation, benefits and emoluments” to which they otherwise would be
entitled as if they had performed the work and the schools had remained open,
and for the time lost as a result of school closures or use of virtual or
remote instruction.
Contracted
service providers. School districts and charter schools shall continue to make
payments of benefits, compensation, and emoluments with a contracted service
provider in effect on the date of the closure as if the services for such
benefits, compensation, and emoluments had been provided, and as if the school
facilities had remained open. Such payments must be used to meet the
payroll and fixed costs obligations of the contracted service provider. A
school district or charter school shall make all reasonable efforts to
renegotiate a contract in good faith and may direct contracted service
providers to provide services on behalf of the school district which may
reasonably be provided and are within the general expertise or service
provision of the original contract. A contracted service provider must
inform the school district or charter school whether the entity has insurance
coverage for business interruption covering work stoppages.
Contracts
with educational service commissions, other entities, and shared services.
School districts and charter schools must make payments for benefits,
compensation, and emoluments and all payments required to an educational
services commission, county special services school district, and a jointure
commission, and under any shared services agreement and cooperative contract
entered into with any other public entity. An educational services
commission, county special services school district, and jointure commission
shall continue to pay benefits, compensation, and emoluments pursuant to the
terms of a contract with a contracted service provider or a shared services
agreement in effect on the date of the closure as if services had been
provided, and as if the school facilities had remained open. Such
payments shall be used to meet payroll and fixed costs obligations. An
educational services commission, county special services school district,
jointure commission or any lead school district under a shared services
agreement or cooperative contract shall make all reasonable efforts to
renegotiate a contract in good faith and may direct contracted service
providers or public entities to provide services which may reasonably be
provided and are within the general expertise or service provision of the
original contract. A contracted service provider or public entity shall
reveal whether the entity has insurance coverage for business interruption
covering work stoppages.
The new
law directs the State Board of Education to promulgate implementing
regulations.
Payments
under Federal Grants. The United States
Department of Education issued an FAQ regarding making payments from federal
grant funds during the COVID-19 pandemic for employee compensation,
nonrefundable travel and registration costs, and future travel. The FAQ
is available here.s
Riker
Danzig is monitoring COVID-19 legal developments applicable to school districts
and charter schools. Other COVID-19 information is available in the Riker
Danzig COVID-19 Resource
Center. If you have any questions, please contact Teresa Moore or Fiona Cousland of our School Law
Practice.
