Changes to the Pennsylvania School Code

Senate Bill 751 (SB751) amended the Pennsylvania School Code (School Code) to account for the conditions of “Pandemic of 2020,” much like the School Code was amended to account for the weather emergency of 1996. Most notable in the SB751 amendment are the following:

• School districts (districts) may renegotiate a contract for school bus transportation services to ensure contracted personnel and fixed costs are maintained during the period of school closure. The bus contractor must submit to the district weekly documentation that its complement levels remain at or above the level on March 13, 2020, in order to continue being paid;
• If a district continues to pay a bus contractor, or operate its own school bus transportation, the district will be eligible for reimbursement from the Pennsylvania Department of Education (PDE) at a rate the district would have received had the Pandemic of 2020 not occurred;
• Any district closed as a result of the Pandemic of 2020 will not receive less subsidy payments, reimbursements, allocations, tuition, or other payments from PDE than it would have received had the Pandemic of 2020 not occurred;
• All district employees, employed as of March 13, 2020, must receive the same amount of compensation they would have received had the Pandemic of 2020 not occurred;
  • This new provision may or may not affect the new federal law, Families First Coronavirus Response Act (FFCRA), signed into law on March 18, 2020. As a quick recap, the FFCRA granted eligible employees emergency paid sick leave and Family and Medical Leave Act (FMLA) leave due to COVID-19. The updates to the School Code would require that all district employees be paid as if COVID-19 never occurred. Stock and Leader believes this means the following:
    • If an employee is deemed an essential employee and is required to work, the employee may be eligible to use the emergency paid sick leave or the emergency FMLA leave and not have to report to work;
    • If an employee is deemed a non-essential employee and is not required to work, the employee would still receive their normal rate of pay as if COVID-19 had not occurred – thus, the new emergency paid sick leave and expanded FMLA leave, while the employee may be eligible for it, would not be necessary;
    • If an employee is able to telework, the employee may be required to telework from home and may be ineligible for the emergency paid sick leave.
    • If an employee claims they are unable to telework due to the need to care for their child(ren), they would be eligible for the emergency paid sick leave and expanded FMLA leave at two-thirds (2/3) their rate of pay.
  • All district employees, employed as of March 13, 2020, must receive the same contribution to PSERS the employee would have received had the Pandemic of 2020 not occurred;
  • Districts must supply the appropriate cleaning materials, protective clothing, and gear, as recommended by the Center for Disease Control (CDC), to any custodian who is responsible for cleaning facilities;
    • Currently, the CDC has only listed the appropriate protective clothing and gear when there has been a confirmed case, or suspected case, of COVID-19 in a facility. Therefore, Stock and Leader recommends districts provide their custodians with the appropriate cleaning supplies (disinfectants) but not the protective clothing or gear (gloves or gowns) UNLESS there has been a confirmed case, or suspected case, of COVID-19 in the facility. In the event there is a confirmed case, or suspected case, the district should immediately provide to its employees the gloves and gowns recommended by CDC Stock and Leader does recommend that districts strongly encourage custodians to remain at least six-feet apart from each other while working, as recommended by the CDC.
    • The requirement to provide protective gear and clothing is only triggered when custodians are “responsible for cleaning district facilities,” and not when a district assigns other non-cleaning tasks, such as cutting the lawn or taking out the trash. In other words, if the district is unable to purchase the protective gear and clothing recommended by the CDC, it can assign custodians to non-cleaning tasks so as not to trigger the requirement.
    • Districts can find the CDC’s recommendations here: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html
  • SB751 allows the Secretary of Education (Secretary) to increase the number of Flexible Instruction Days (FIDs) a district may use, and waive the application deadline to apply for FIDs;
    • The question remains: “how many FIDs can districts use?” Unfortunately, there is not an answer to this question yet. From a plain reading of the statute, Stock and Leader believes that the legislators granted the Secretary very broad powers to increase the number of FIDs to any number he sees fit.
  • If a district placed a student in a private or nonpublic school before March 13, 2020, and the private or nonpublic school offers continuity of education during the time it is closed, the school district must continue paying the private or nonpublic school as if the Pandemic of 2020 had not occurred;
    • While the term “private school” is not defined, Stock and Leader believes this term will include any private licensed or private academic school in which school districts may place students on a normal basis.
    • Districts are encouraged to check in with the private and nonpublic schools in which they place students, in order to get an understanding of the continuity of education plans implemented by these types of schools.
  • All charter schools, cyber charter schools, and regional charter schools shall receive tuition payments based upon the enrollment as of March 13, 2020;
    • Unlike the provision regarding private and non-public schools, districts will be required to continue paying tuition checks even if the charter or cyber charter school does not provide some form of continuity of education. However, charter and cyber charter schools are required by this update to the School Code to make a “good faith effort” to provide a continuity of education plan.
  • Professional educators’ compliance periods for continuing professional education will be extended by one year.

The attorneys in Stock and Leader’s School Law Group continue to monitor both federal and state laws and regulations that take shape in these times.  We are here for you and stand ready to answer your questions and unravel complex, new issues that only now present themselves during these unprecedented times.