Coronavirus (COVID-19) Guidance for Schools

By Megan Mann, NAIS Legal Counsel

Last updated: July 10, 2020
 

Important Reminder

This situation is evolving by the hour. Every school is struggling with what decisions are the “right” ones to make and, in many instances, we may not know what is “right” until we have the benefit of hindsight. Even then, we may not know. With that in mind, the “right” decision is one that considers public health guidance, the law, your school’s mission and culture, and your community’s safety. What is “right” for one school may not be right for another. Please keep this in mind as you review feedback about what other schools are doing.

About this Document

NAIS is working daily to bring the independent school community together to exchange ideas and resources, provide additional guidance, and respond to the many thoughtful inquiries posed by schools across the country. We are updating this document regularly with select news and federal guidance, resources, and independent school strategies and trends. Additionally, we are updating our coronavirus resource page regularly: Coronavirus (COVID-19) Resources for Independent Schools

Please note: The following information does not constitute legal advice, medical advice, financial advice, or an endorsement of any service or product referenced herein. 

Rather, this resource reflects current school practices and concerns we’ve gleaned from the field, along with general guidance and ideas for consideration. As always, applicable law and government mandates, school policies and contracts, the advice of the school’s lawyer, and your school’s mission, culture, and community needs should ultimately guide your process and decisions—and, of course, the safety of the community, which we know is and should be your paramount concern. 

With that foundation laid, this document provides guidance on the following topics.  

Please note: We will continually update this document as the situation evolves. While changes may be made throughout the sections to reflect new issues, trends, etc., we will endeavor to mark new sections and particular updates in this table of contents, as well as in the sections themselves.  

FAQs and Trends

In no particular order, here are some trends and trending FAQs. To make your review more convenient, watch for new additions at the top of the relevant section. These answers are intended to be brief summaries and are not exhaustive responses.

Coronavirus Aid, Relief, and Economic Security (CARES) Act

  1. Is Congress working to make additional changes to the Paycheck Protection Program? 
    • Yes. Congress passed and the president signed the Paycheck Protection Program (PPP) Flexibility Act of 2020. The bill extends the "covered period" during which borrowers can use the funds and achieve forgiveness to 24 weeks (up from eight weeks), decreases the amount of funds that must be used for payroll costs to 60% (down from 75%), and allows PPP recipients to take advantage of the payroll tax deferral provisions in the CARES Act. Several senators are working on another PPP update bill that will further clarify program access, spending, and forgiveness deadlines. Treasury issued an interim final rule implementing the legislation on June 11, another on June 17, and a third on June 22. Furthermore, Treasury issued the updated PPP forgiveness application (with instructions). Some borrowers can use the new PPP forgiveness application EZ, which is easier and shorter (see instructions). The deadline to apply for PPP funds has been extended to August 8. NAIS will provide further information and analysis as it becomes available.
  2. Is there any additional information on the “good faith certification” and the U.S. Small Business Administration’s (SBA) announcement that it will audit all loans over $2 million?
    • Yes. On May 13, the U.S. Department of the Treasury issued FAQ #46 stating that borrowers with Paycheck Protection Program (PPP) loans of less than $2 million (original principal amount) will be deemed to have made the certification of need and necessity for the loan in good faith. These borrowers will not have to provide additional documentation to the SBA to show their need for a PPP loan and will generally not be subject to SBA audit. Ultimately, the SBA determined that borrowers with loans under $2 million are less likely to have access to other adequate sources of liquidity right now. For more information read the NAIS legal advisory on the CARES Act
  3. Does FAQ #46 mean that only borrowers with loans under $2 million can make a good faith certification of need? How will audits for borrowers with loans over $2 million proceed?
    • No. Borrowers with loans greater than $2 million may still be able to certify in good faith that “current economic uncertainty makes this loan request necessary to support the[ir] ongoing operations.” However, this is going to be an individualized determination based on program requirements as outlined in FAQ #31. For additional analysis of some of the financial considerations, read this article. FAQ #46 does give some additional information on how the audits for borrowers with loans over $2 million will work, explaining that if the SBA determines that a borrower did not have “an adequate basis” to certify the need for the loan, the SBA will seek repayment of the loan and the borrower will not be eligible for forgiveness. However, if the borrower follows this process and repays the loan, there will not be additional penalties, administrative enforcement, or referrals to other agencies. For more information read the NAIS legal advisory on the CARES Act.
  4. For the purpose of Paycheck Protection Plan (PPP) loans, do bonuses count as payroll costs?
    • Yes, for most employees. According to the new Interim Final Rule on Loan Forgiveness, as long as an employee’s compensation does not exceed $100,000 (annualized), both hazard pay and bonuses are eligible for forgiveness. According to the Treasury, they are a supplement to salary or wages and are therefore “similar compensation.”
  5. We are considering a PPP loan. What should we keep in mind? For more on this, or for those rethinking their current decision, please review COVID-19 Considerations: Independent Schools and the PPP Loan Application Decision.
  6. Will receiving any benefit or funding under the CARES Act make my school a recipient of federal financial assistance (FFA) and therefore trigger coverage under federal laws from which the school was previously exempt?
    • While Treasury and the SBA continue to put out additional information, put simply our current understanding is that, yes schools that receive a PPP loan will become recipients of FFA. For more information, please visit the Federal Legislation and Guidance section.
  7. We run a single-sex school. If we apply for a PPP loan, will this affect our school’s single-sex status?
    • No. Accepting PPP loan funds is considered federal financial assistance (FFA) and thus subjects schools to certain requirements for recipients of FFA, including complying with Title IX regulations. But Title IX regulations include an exemption for certain educational institutions—including independent schools—from the prohibition against discrimination on the basis of sex in admissions and recruitment. A school may still recruit and admit students of one sex even if it receives FFA. All schools should be aware that all other elements of Title IX remain in full effect, so ensure you have policies and procedures in place to respond  promptly to complaints of discrimination, sexual harassment, and sexual violence. Note: These regulations are expected to be updated any day; we will provide further guidance on how to comply with the new regulations once they are released.

Online School

  1. Healthy Relationships Online
    • Now is not the time to relax our awareness and education about healthy boundaries, harassment, abuse, and bullying. In fact, with authorities reporting an uptick in online abuse, schools should be hypervigilant about online grooming behaviors, cyberbullying, and other forms of inappropriate engagement with and among students (and employees). Please make sure your school continues to educate employees, students, and families on healthy relationships, what unhealthy behaviors might look (or feel) like, and how community members can come forward if they think they or someone they know might be suffering from inappropriate conduct by another. Educators should also be aware that NPR reports “[o]nline child sexual abuse is rising as countries close schools and impose various levels of lockdown to contain the new coronavirus pandemic.”
  2. “Zoombombing”
    • Classes and meetings are moving online and the bad actors are moving in. Interruptions and—what’s worse—graphic content are ruining online learning experiences. There have been so many reports of outsiders posting pornographic and/or racist images, that the FBI is now involved and issued this warning. Read more here and please stay hypervigilant for the students. The FBI’s warning includes steps to provide a more secure learning environment, as does this Zoom blog entry. Nevertheless, several public school districts have reported moving away from the platform. While many of our independent schools have reported sticking with Zoom, a few shared with us that they prefer other platforms (for this and other reasons).
  3. Are we allowed to record classes and meetings?
    • Generally, yes, but you may need to get permission from parents (and perhaps even students). Even if you do not have to get permission under the law, you may want to do so. It’s always good to be above-board about these things. Communicate to parents any limitations of use of the recordings. For more information see COVID-19 Considerations: Recording Classes and Meetings section.
  4. Should we have 1:1 meetings with students?

    • Short Take: Each school needs to make a decision about what learning programs and services will work best for its community. We understand that certain professionals, including attorneys, have advocated strongly either for or against 1:1 meetings. It is our position at NAIS that it is extremely important to maintain connections and support for our students in this stressful time, so long as the school feels it can do so in a meaningful and safe way.
  5. Parent Surveys
    • NAIS continues to hear about myriad ways to support parents and promote engagement. One trending approach is to send a simple survey to parents to assess the success of online learning programs (from the parents’ perspective) and to get parent feedback on evolving issues. We have also heard about parent Zoom calls and other smart strategies. This gives the parents a voice—a chance to participate in the process. It also garners key feedback for schools about what is—and what is not—working. Additionally, if your school is interested in conducting a parent survey, NAIS has a survey with three main sections: the digital learning experience, COVID-19 impact on families, and plans for enrolling/re-enrolling. Email surveycenterhelp@nais.org for your school’s unique survey link.
  6. Why do your vendor contracts require you to obtain parental consent for students under age 13 to use school-approved websites and other online services?
    • While our nonprofit schools are not subject to the Children’s Online Privacy Protection Act (COPPA), many of the vendors you work with are subject to it. While compliance is their responsibility (not yours!) and schools can provide consent on behalf of parents in most situations, some vendors are also requiring schools through the vendor contract to get parents’ consent. It would be wise to review this issue and consult with your legal counsel (preferably one with COPPA experience). For more information on this topic, read COVID-19 Considerations: Copyright & COPPA.
  7. Do we need online learning policies?
    • Ideally, yes, but we all know this is “survival mode” time, so let’s focus on what you need in order to set your school and families up for some basic successes during remote learning times. For more information, please visit the Online Learning Policies and Protocols section.
  8. A focus on educating and caring for the “whole child” during a remote learning period.
  9. An interest in “getting creative” with online learning to avoid rote video lectures that lack student engagement. 
    • We are so impressed with the focus on innovation, even in a time of crisis. In addition to online yoga, art, and music classes, we are also hearing that some schools are injecting more student choice and voice into their online programming. We’ve heard from schools that have staff post lessons as “electives” that students can weave into their day (e.g., a business officer records a lesson on sports statistics; the maker-space teacher designs lessons using common household items). Student voice and autonomy can be a great way to enhance engagement!

Student and Employee Issues

  1. Mini school run for the children of school employees.
    • We are learning that some schools are preparing to run or house a mini or “tiny” school to accommodate employees who have children in other schools, which may be closed when the independent school is open. We are learning that these mini schools will provide high-speed internet access for the students to complete online learning, along with space for the learning and supervision. Some of the schools are contemplating creating a center for young children as well. The goal is to ensure that when the physical school is open, employees are able to attend, without being hindered by childcare responsibilities that may prevent them from working. However, this will require extra peoplepower, or a creative reworking of existing peoplepower, plus space. We look forward to learning more about this interesting trend!
  2. Do we need to worry about HIPAA? 
    • Probably not. Very few of our schools are actually “covered entities” under the Health Insurance Portability and Accountability Act (HIPAA) and going online and engaging in telecounseling does not alter that. For more information, we are reposting information from our September 3, Legal News You Can Use post. If you think your school may be subject to HIPAA, please contact your legal counsel to review the implications.
  3. Prepare for unavailability.
    • Schools continue to prepare for employees (including leadership) to be unavailable due to COVID-19-related reasons, including illness or death.

Miscellaneous

  1. Mini school run for the children of school employees.
    • If you read through the Student and Employee Issues section, this is old news to you. For those looking for general trends, we want to call your attention here. We are learning that some schools are preparing to run or house a mini or “tiny” school to accommodate employees who have children in other schools, which may be closed when the independent school is open. We are learning that these mini schools will provide high-speed internet access for the students to complete online learning, along with space for the learning and supervision. Some of the schools are contemplating creating a center for young children as well. The goal is to ensure that when the physical school is open, employees are able to attend, without being hindered by childcare responsibilities that may prevent them from working. However, this will require extra peoplepower, or a creative reworking of existing peoplepower, plus space. We look forward to learning more about this interesting trend!
  2. Nearly 100 Universities Make SAT/ACT Scores Optional Due to COVID-19. (5/12/20)
  3. During this time, schools are looking to their communities of practice. Are there any things we should keep in mind regarding antitrust laws?
    • We may be in the middle of a pandemic, but the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) want employers to know that they continue to be alert for illegal anticompetitive behavior in the areas of compensation, benefits, hours worked, hiring, retention of workers, and other terms of employment. In the wake of various DOJ investigations and the NACAC settlement, independent schools should remember that educational institutions are not immune and be aware of these issues as we all work through these unprecedented times.
  4. Keep in contact with the health department.
    • Remember, this pandemic is far from over. Even if we get back on campus in the fall—which we sincerely hope we do— this virus or another one will still be present. Please maintain your relationships in the local health department. Keep names, numbers, and after-hours contact information handy.
  5. Grieving. Preparing for Grief.
  6. Sharing supplies with health-care workers.
    • Many schools have reserves of emergency supplies, including masks (even N95!), hand sanitizer, bleach, toilet paper, and water.  While you may need to provide some of these supplies to the employees and students remaining on campus (especially in light of the CDC’s guidance to wear masks to stem the spread of the virus), please consider donating extras to hospitals and other health-care or first-responder organizations.
  7. What are schools saying about hiring?
    • A variety of things, from hiring freezes to “business as usual” (but online). Remote recruitment is definitely trending. Please review the Hiring and Contract Renewal Season section for more information.
  8. Google says my school is closed! It’s not—it’s running remotely! What do I do?
    • Check your status online by doing a Google search and checking for a red status banner (often located in a box on the right side of the screen). If it lists “Closed” or “Temporarily Closed,” we recommend you follow the steps listed here. Ensure that hours are reflected accurately and push for a more accurate representation of the situation, especially during this critical enrollment time.
  9. How are other schools handling the payment of employees who cannot work when the school is closed, or who work in a diminished capacity?
    • Most schools we’ve spoken to are doing their level best to make and keep employees “whole” as long as possible. We’ve heard about a variety of plans here, many of which are being worked out at the moment. Please visit the Employee Considerations section for more information.
  10. How are other schools handling tuition in light of these changes?
    • Currently most of the schools reporting to us are still collecting full tuition. However, a number of factors impact this decision, which will likely vary among schools. We discuss this in slightly more detail in the Financial Considerations section. 
  11. What are other schools doing about fundraising?
    • As with most of these topics, the answer seems to vary greatly. Some of our schools are proceeding with a “business as usual” mentality for advancement efforts, while others are temporarily shutting down all fundraising communications. Of course, there are a variety of “in between” positions. For example, a few schools reported taking the temperature of their donor community and making a responsive plan; others are conducting targeted outreach to key donors to assist in this time of crisis; while still others are moving as many efforts online as possible (online galas!). One association executive suggested now could be the time to focus on grant writing to support technological infrastructures, thinking current conditions provide a chance to explore whether there are corporations interested in supporting continuous learning. This may also be an opportunity to focus fundraising efforts toward emergency (and longer-term) support for students and families who are struggling. For example, one higher ed institution recently posted on social media that if the community is looking to help at this time, they could support the school’s student emergency aid and assistance fund. 
  12. Leadership information overload. 
    • We hear you. There are more articles, webinars, and random information sources than anyone can count. Plus, you have your actual job to conduct in a time of total and complete chaos. Have you considered retooling one of your currently underutilized staff members to track webinars and other items to help you decide what to attend? Could you use a team member to assist with news analysis?
  13. A wave of empathy and concern for the class of 2020 losing its senior year.
We love hearing your stories! NAIS has launched Sharing Solutions, a new site for schools to share stories, strategies, documents, lesson plans, and other resources to support one another through these challenging times. Submit your solutions and learn from your independent school colleagues at share.nais.org. Also, remember that NAIS Connect is a powerful place to support one another through in-depth conversations. 

Federal Updates, Guidance, and Resources

Legislative and Regulatory Updates and Other Federal Guidance

  • New International Student Guidance and Pending Rule: On July 6, the Student Exchange Visitors Program (SEVP) issued a broadcast message and guidance that will affect nonimmigrant students taking online classes due to the COVID-19 pandemic for the fall 2020 semester. For more information see the International Students (Visa Status and Online Learning) section.
  • New PPP forgiveness application and interim final rules released: On June 16, Treasury issued the updated PPP forgiveness application (with instructions). Additionally, some borrowers will be able to use the new PPP forgiveness application EZ, which is easier and shorter (and also comes with instructions). Treasury has also published several interim final rules on the forgiveness process, which have been updated as the program has changed. For a helpful map on how to navigate the forgiveness process, see this article.
  • U.S. Department of the Treasury Updates PPP FAQs: Treasury continues to update its FAQs on the PPP program. The latest round of FAQs includes #31, #39, and #43, which tell applicants to consider their liquidity before certifying the need for a PPP loan, announce the intention to audit loans over $2 million, and provide a grace period to return the funds. Most importantly, there is a new FAQ #46, which provides a safe harbor for borrowers with loans under $2 million—it will be presumed the certification of need was made in good faith. The SBA has also issued a series of interim final rules formalizing some of the FAQs.
  • IRS Issues Guidance on PPP and Payroll Deferral: Under the Paycheck Protection Program Flexibility Act of 2020, PPP borrowers now have full access to the payroll tax deferral provisions of the CARES Act.
  • New U.S. House of Representatives Coronavirus Bill: The House passed a 1,800+ page coronavirus bill that allocates more than $3 trillion to states, individuals, and health systems. Republicans essentially declared the legislation a “liberal wish list” that is a nonstarter in the Senate. Read The Washington Post article here. There are a few elements that independent schools should be aware of as negotiations continue. The bill called the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act:
    • Increases the amount of wages eligible for the Employee Retention Credit. 
    • Makes several adjustments to the PPP program. 
    • Provides an additional $90 billion for a State Fiscal Stabilization Fund for K-12 and Higher Education, but places limitations on private school student/educator access to these funds and limits access to funds allocated in the CARES Act to Title I students only. 
    • Provides funding to be used through the E-Rate program to support Wi-Fi connectivity, device purchases, and other related tools to support distance learning.
  • Protracted negotiations with the Senate are expected. However, Congress passed and the president signed a limited bill focused on updates to the PPP. Otherwise, as of right now the CARES Act and relevant rules and guidance from the Treasury, U.S. Internal Revenue Service (IRS), and U.S. Department of Education are still the relevant guideposts for all current programs.
  • Occupational Safety and Health Administration (OSHA) issued New Enforcement Guidance regarding employers’ obligation to record workplace-related COVID-19 illnesses. OSHA also issued new guidance on cloth face coverings and the workplace.
  • The U.S. Centers for Disease Control and Prevention (CDC) Continues to Update its Guidance.
  • U.S. Department of Education (Ed. Dept.) 
  • U.S. Department of Labor
    • For the latest on the new unemployment provisions—Pandemic Unemployment Assistance (PUA), Pandemic Emergency Unemployment Compensation (PEUC), and Federal Pandemic Unemployment Compensation (FPUC)—see these documents from the Department of Labor. The program letters are Unemployment Insurance Program Letters No. 14-20, 15-20, 16-20, 17-20, and 18-20.
    • DOL issued new guidance (18-20) on how nonprofits that are reimbursing employers for unemployment purposes will and will not be responsible for repaying the state for unemployment claims. The guidance explains the 50% reimbursement (or relief) provision in the Coronavirus Aid, Relief, and Economic Security (CARES) Act and outlines which benefits are completely covered by the federal government and do not have to be paid by nonprofit employees at all. For further explanation, read this article
    • The DOL and U.S. Department of Health and Human Services (HHS) released Guidance on Preparing Workplaces for COVID-19.
  • The U.S. Equal Employment Opportunity Commission (EEOC) updated its FAQs regarding COVID-19 and the workplace nondiscrimination law the Americans with Disabilities Act. The latest updates cover issues such as combating national origin discrimination relating to COVID-19; whether accomodations are required for older employees, pregnant employees, or those with family members at higher risk; and best practices for surveying your workforce to see who may need flexible work arrangements. The extensive FAQs also cover temperature checks, confidentiality of medical information, and general information about reasonable accommodations (including for those whose disabilities may place them at higher risk for COVID-19).
  • NAIS Member Resource: NAIS has developed this member resource analysis document covering key issues including PPP loans, Economic Injury Disaster Loans, the Main Street Lender Program, the Employee Retention Credit, unemployment benefits, and the Education Stabilization Fund, which will be updated as additional guidance becomes available. 

Coronavirus Aid, Relief, and Economic Security (CARES) Act

Congress passed a $2 trillion bill—the Coronavirus Aid, Relief, and Economic Security (CARES) Act—that includes several items of interest to independent schools, small business loans (PPP), enhanced unemployment benefits, and funding for K-12 education. For initial information on the entire bill, schools may access this breakdown here. Then on April 21, Congress passed the Paycheck Protection Program (PPP) and Health Care Enhancement Act. This bill provides another $310 billion for the PPP program, an additional $50 billion for Economic Injury Disaster Loan (EIDL) loans, and an additional $10 billion for EIDL grants (the advance). Of the $310 billion in additional funding for PPP, $250 billion is for the program as it currently exists and $60 billion is set aside for distribution by smaller financial institutions.

Paycheck Protection Program (PPP) Loans

Congress allocated $659 billion for the PPP loan and this program is of extensive interest to many small businesses, including independent schools. Over the last few weeks, we’ve learned more about several items including how to calculate your eligible loan amount and how the loan forgiveness portion of the program will work, including the changes under the Paycheck Protection Program Flexibility Act (PPPFA) of 2020. For example: 
  • When calculating average payroll costs, you can use either the last 12 months or calendar year 2019.
  • You do not reduce payroll costs by employee-side payroll taxes (i.e., the payroll taxes that are owed by the employee and withheld by the employer on their behalf), meaning payroll costs are calculated on a gross basis. 
  • While compensation for employees who make in excess of $100,000 is excluded from the calculation of payroll costs, this refers to cash compensation only and does not include non-cash benefits.
  • The forgiveness period starts when the lender makes the first disbursement of the loan to the borrower. This must happen within 10 calendar days after the loan is approved. Under the Paycheck Protection Program Flexibility Act of 2020, the forgiveness period is 24 weeks, meaning borrowers will have 24 weeks to use the funds and apply for forgiveness. Borrowers with loans that were disbursed before the passage of this legislation may choose to use the eight-week period instead.
  • Borrowers must use at least 60% of the amount for which they are seeking forgiveness on payroll costs to receive full forgiveness.
  • Borrowers have until December 31, 2020, to restore their full-time-equivalent counts and salary levels to achieve full forgiveness.
  • Payments on principal and interest will be deferred from the date the loan is disbursed until the date that the determined forgiveness amount has been remitted to the lender, though interest will still accrue during this time. Borrowers must submit their forgiveness application within 10 months after the forgiveness period ends. After that point they must start making principal and interest payments.
  • More information about the loan forgiveness period: 
    • Borrowers can use an “alternative payroll-covered period” for payroll costs when determining the applicable eight-week or 24-week forgiveness period to better align with payroll cycles. Rather than the loan disbursement date, the clock can start the first day of the first pay period following the disbursement date. 
    • Eligible payroll costs for forgiveness purposes generally include payroll costs paid and payroll costs incurred during the covered period (or APCP). Additionally, payroll costs that are incurred but not paid during the last pay period of the covered period (or APCP) if paid on or before the next regular payroll date. 
    • Borrowers can apply for forgiveness before their covered period is complete (i.e., before their eight-week or 24-week period ends). Borrowers may submit their loan forgiveness application before the end of their covered period if they have used all the funds for which they are requesting forgiveness. However, if the borrower applies for forgiveness before the end of their covered period AND they have reduced any employee’s salary or wages by more than 25%, then they have to account for the salary reduction for the entire covered period, be it eight or 24 weeks. Essentially, a borrower cannot apply for forgiveness early to try and limit the impact of a salary reduction on the amount eligible for forgiveness.
    • The PPPFA and subsequent interim final rules made some changes to the other safe harbors/exceptions from loan forgiveness reductions. As of now, borrowers will not be penalized (i.e., the borrower’s full-time-equivalent count will not be reduced and therefore loan forgiveness amount will not be reduced):
      • If an employee is fired for cause, voluntarily resigns, or voluntarily requests and receives a reduction of hours. 
      • If you previously reduced an employee’s hours, but you now offer to restore those hours and the employee declines the offer. In this instance, you must make  a good-faith written offer to restore the hours (the same number of hours at the same salary/wages that the employee earned in the last pay period before the reduction) and the employee must reject the offer. You must keep records documenting both the offer and its rejection. 
      • If you are unable to rehire individuals who were previously employed (as of February 15, 2020) AND you show that you cannot hire a similarly qualified person for that unfiled position. 
      • If you can show in good faith that you are unable to return to the same level of business activity as of February 15, 2020, due to compliance with requirements established or guidance issued by HHS, the CDC, or OSHA relating to sanitation, social distancing, or worker/customer safety requirements.
    • The loan forgiveness review process may take up to five months—even without audit or other review. There will be opportunities to appeal adverse forgiveness decisions from either the lender or the SBA.
  • For more information on the loan forgiveness application, read the CARES Act Advisory.
Resources

Additional CARES Act Information

Economic Injury Disaster Loan (EIDL)

The CARES Act also makes another type of loan available—the Economic Injury Disaster Loan (EIDL). Businesses with fewer than 500 employees (as well as private nonprofits, which include 501(c)(3) organizations like schools) that are in a location affected by a disaster may apply for an EIDL. Due to the widespread impact of COVID-19, every state in the U.S. (plus DC and territories) qualifies as a location affected by a disaster. Applicants may receive loans up to $2 million and  the interest rate on the loan for nonprofits is 2.75%. There is not a set term of the loan, but the maximum term is 30 years. While usually a borrower must demonstrate that they cannot get credit elsewhere, that requirement has been waived. Unlike PPP loans, these loans are not forgivable. According to Politico, funding for this program is also running out and borrowers are receiving loans that are much smaller than the maximum. 

If your school is a faith-based institution, see this guidance from the SBA as it pertains to PPP and EIDL.

Education Stabilization Fund

The CARES Act also includes $30.75 billion for the Education Stabilization Fund. Of that, $13.5 billion is allocated for a K-12 Elementary and Secondary School Emergency Relief (ESSER) Fund and $3 billion is for the Governor’s Emergency Education Relief Fund (GEERF). The ESSER fund can be used for a variety of purposes including any allowable uses under Elementary and Secondary Education Act (ESEA), purchasing sanitation and cleaning supplies, purchasing education technology, supporting mental health needs, and more. The GEERF fund provides resources for both K-12 and higher ed and provides funding for districts and colleges/universities that have been significantly impacted by the current crisis among some other uses. Both programs require the provision of equitable services to students and educators in private schools.

Nonprofits Not Eligible for Main Street Loans 

After some confusion, the Federal Reserve initially announced that nonprofits will not be eligible for Main Street Loans at this time. The Main Street Loan program is another CARES Act program that provides loans to companies with up to 10,000 employees or with revenues of less than $2.5 billion, with a four-year term with principal and interest payments deferred for up to one year. However, the Fed recently announced a Main Street Loan option for nonprofits. The comment period has closed, but the final parameters have not yet been announced. For more information read this article.

Federal Financial Assistance and Nondiscrimination Laws

Will receiving any benefit or funding under the CARES Act make my school a recipient of federal financial assistance (FFA) and therefore trigger coverage under federal laws from which the school was previously exempt?

In short, yes. The application indicates PPP borrowers will become recipients of FFA and must adhere to the SBA's regulations implementing certain laws if they receive funds (Title VI, Title IX, the Age Discrimination Act, and Section 504). A new FAQ from the SBA (focused on faith-based applicants but may apply more broadly on this point) indicates that borrowers will only be recipients of federal financial assistance for the term of the loan (i.e., until it is forgiven or paid off). There may be additional nuances to how long a school will be deemed a recipient of FFA and we are working to get clarification. 

Additionally, many schools have asked about the Family Educational Rights and Privacy Act (FERPA). While student privacy is of the utmost importance, FERPA is only connected to funding from the U.S. Department of Education, which is not involved in the PPP program (run by the SBA), so the answer here is no. 

Lastly, many schools have inquired about the Education Stabilization Funds. These funds will operate similarly to how equitable services function under regular federal education programs. For further analysis of this and other issues relating to the CARES Act, please read this NAIS advisory, which will be updated as new guidance gets released.

Many of our schools have inquired about what it means to be a recipient of federal financial assistance. For a deeper dive into this topic, please review the following:

Title IX Compliance 

In addition to the information in the Federal Financial Assistance and Nondiscrimination Laws section of this guidance, we know many of our schools are seeking additional information on what Title IX compliance specifically means for independent schools accepting Paycheck Protection Program (PPP) loan funds. First, let’s answer this important question: What is Title IX? Title IX of the Education Amendments Act of 1972 (Title IX) is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. The principal objective of Title IX is to avoid the use of federal money to support sex discrimination in education programs and to provide individuals with effective protection against those practices. While many of our schools are vaguely familiar with this law in connection with higher education athletics or harassment claims, many do not realize exactly how comprehensive it is (it applies to all education programs and activities) and what it means for independent schools to be compliant. While independent schools have rightfully promulgated policies prohibiting discrimination, including harassment, in compliance with federal, state, and local human rights laws, Title IX imposes additional compliance requirements on schools accepting federal funding. This likely means that existing policies will not suffice to demonstrate compliance under Title IX. These Title IX requirements, very generally speaking, will include a grievance procedure and policy to handle sex discrimination complaints; the appointment of a Title IX coordinator to administer and watch over the school’s Title IX program; and a review of programs and activities for Title IX compliance. Those schools more familiar with Title IX are likely familiar with the U.S. Department of Education’s (DOE) regulations. Please note: By accepting PPP loan funds, schools will be obligated to comply with the U.S. Small Business Administration’s (SBA) regulations. These are largely similar to DOE, with a few exceptions.

For a deeper dive into this topic, please review the advisory COVID-19 Considerations: Title IX Guidance for Independent Schools Receiving CARES Act PPP Loans.

Additionally, get further guidance from the advisory COVID-19 Considerations: PPP Civil Rights Checklist for Independent Schools.

Families First Coronavirus Response Act

 Congress passed the Families First Coronavirus Response Act (H.R. 6201 or FFCRA), which the president immediately signed. The bill provides funding for coronavirus testing, flexibility for school nutrition programs, increased unemployment insurance, and emergency paid sick leave and paid family medical leave. The emergency paid sick leave and paid family medical leave provisions apply to employers with fewer than 500 employees and go into effect April 1, 2020. Any leave requested or taken prior to April 1, is not subject to the requirements of the bill nor is it eligible for the related tax credits. The law’s provisions apply to eligible leave taken between April 1 and December 31, 2020. On April 1—the day the new law goes into effect—the U.S. Department of Labor (DOL) issued a rule further outlining the rights and obligations regarding paid sick leave and paid family leave under the FFCRA. In addition to the rule, which is the formal legal interpretation of how these new leave requirements operate, the DOL also has fact sheets, an extensive FAQ with nearly 90 questions, and the sample poster that must be sent to employees informing them of their rights under this law. Information from the rule and FAQ includes, but is not limited to, further detail on the five eligible reasons an employee can take paid sick leave and the one reason an employee can take paid family leave, what it means to be unable to work or telework, and the contours of the small business exception. Additionally, the IRS has released FAQs and the Form 7200 to help employees receive the tax credits and refunds they are owed relating to the FFCRA (and the CARES Act). Read this NAIS member advisory (which will be updated with new information as it is available) for a deeper analysis of what this bill means for employees and employers. 

Thank you to Whitney Silverman, NAIS staff attorney, for her constant and diligent attention to federal legislation and guidance for the benefit of our members.  

Physical Plant 

Access to Campus (Including Restrictions During Shelter-in-Place)

Through summer and into the 2020-21 school year, access to campus issues remain relevant to our schools, depending on the phase of reopening your state or locality is in at the moment.

Fully Functional Campus
  • Consider implications in light of federal and state guidance, including physical distancing and large gatherings. 
  • Maintain contacts with the local public health department
  • Consider collecting and disseminating information about COVID-19 cases. 
  • Communicate regularly about good hygiene.
  • Be prepared to isolate individuals who exhibit symptoms. 
    • Have an exit or continued-isolation strategy.
  • Be prepared to close off areas/entire campus for a minimum of 24 hours and then engage in cleaning and disinfecting per CDC Guidance.
Campus Accessible to Employees Only
  • The Basics
    • Consider implications in light of federal and state guidance, including physical distancing and large gatherings. 
    • Maintain contacts with the local public health department.
    • Consider collecting and disseminating information about COVID-19 cases. 
    • Communicate regularly about good hygiene.
    • Be prepared to isolate individuals who exhibit symptoms. 
      • Have an exit or continued-isolation strategy.
    • Be prepared to close off areas/entire campus for a minimum of 24 hours and then engage in cleaning and disinfecting per CDC Guidance.
  • Employee Considerations 
    • Are you able to implement a system of rotating shifts, reduced staff, or other measures to promote or ensure physical distancing (and to limit overall traffic on grounds)?
    • Consider in-building signage about physical distancing and hygiene guidance in bathrooms/kitchens.
    • Think in advance about whether exceptions will be made for older employees or those with underlying health conditions. Will you require a doctor’s note? Will you make a blanket policy? Consider working with legal counsel. 
  • Parent/Community Communications
    • Clearly communicate the “campus off limits” restriction to families, in writing. Indicate whether this restriction is limited to buildings or includes all of campus (including playgrounds).
      • Communicate by emails and signage on gates/buildings. 
    • Close gates as necessary, but include contact information for families/personnel (on gates, in emails, as appropriate).
    • Design a system for retrieval of items (personnel and families)—preferably one that does not include multiple people traipsing through buildings. If someone is carrying the virus unknowingly, we want to limit their contact with our areas. Perhaps someone can be the point person for items and designate a pickup point. Consider a pickup schedule (times/timeframes) where parents and employees can retrieve items outside or in one designated room that can then be closed and disinfected if needed.
Campus Limited to “Essential” Personnel
  • The Basics
    • Consider implications in light of federal and state guidance, including state shelter-in-place orders. 
      • Consult with legal counsel.
    • Maintain contacts with the local public health department.
    • Consider collecting and disseminating information about COVID-19 cases for essential personnel.  
    • Communicate regularly about good hygiene.
    • Be prepared to isolate individuals who exhibit symptoms. 
      • Have an exit or continued-isolation strategy.
    • Be prepared to close off areas/entire campus for a minimum of 24 hours and then engage in cleaning and disinfecting per CDC Guidance.
  • Essential Personnel
    • Clearly outline who is “essential,” but reserve the right for flexibility.
      • Schools should consider whether these employees need an employer letter. Several states have implemented fines for breaking shelter-in-place orders and we have heard that police are enforcing the orders. Consider working with your school counsel to determine if a letter printed on school letterhead explaining the employee’s status (and therefore why the employee is out and about) would be helpful under the state’s order.
    • Know who has keys/keycards to all facilities. If there are limited keys, make a plan in advance for retrieving keys or having copies if the person in possession of the keys falls ill. 
    • We are learning that some employees are giving pushback, and we even received one report of employees calling the state attorney general’s office (ultimately it was concluded that the school was operating appropriately). It is wise to at least prepare for this, especially with boarding schools that will need certain staff on grounds to remain functional for remaining students.
    • Think in advance about whether exceptions will be made for older employees or those with underlying health conditions. Will you require a doctor’s note? Will you make a blanket policy? Consider working with legal counsel. 
    • Consider the optics of decisions to ensure they are in line with your mission and culture. While several schools (especially boarding schools) need to have employees on campus, some wonder if allowing teachers on grounds sends the wrong message to students and families sheltering at home. On the flip side, it may be the best way to keep essential school functions running, provide employment, and support teachers who may share living spaces with families or friends and do not have a place to teach remotely. Each school must assess the various factors (public health, employment, school needs, optics and messaging, state and federal guidance, etc.) when navigating these decisions.
  • Completely Closed 
    • Are you able to conduct periodic surveillance/security measures (remotely or with limited in-person staff)?
    • Are you maintaining any physical upkeep necessary while complying with government mandates?
    • Be prepared to close off areas/entire campus for a minimum of 24 hours and then engage in cleaning and disinfecting per CDC Guidance if you learn that a recent visitor to campus (whether employee, student, or otherwise) has the virus. 
Find more information in the Employee Considerations section.

Close-and-Clean Response to Sickness on Campus

Schools holding summer camps may consider this guidance in light of these programs.

Several schools with suspected or known exposure to the virus are shuttering their doors to engage in intensive cleaning. For those schools remaining open, or for schools
when they reopen, this will still be an important consideration.  For schools who have moved online, but permit any staff on grounds, this is still applicable advice.

We have seen school “close and clean” measures being taken in the following instances:
  • A suspected or known case of the virus in the school community (someone who was physically present on school grounds has the virus); and
  • A suspected or known case in the household of a community member (e.g., a student’s sibling).
In these instances, the school shuts down for a few days to a week to permit a 24-hour pre-cleaning window, followed by a full cleaning and disinfection by professionals or the school’s team, in accordance with CDC guidance. We have just learned that one local public health official recommended a multi-week closure of the physical plant. Schools are unclear whether these measures will be sustainable as cases grow, but the close-and-clean practice is meant to protect against further spread within the school community and the larger community. 

For our boarding schools, shutting down to clean may not be an option. If it is possible to close off areas of exposure and follow CDC cleaning guidance, please do so. Where students or employees who have contracted COVID-19 are housed in isolation, the CDC recommends following the same steps used to clean a household infected with the virus. They further encourage boarding schools to follow the guidance for higher ed institutions with regard to preventing and containing the spread of the virus. While the guidance is generally geared toward those schools housing an older population (18+), there are helpful guideposts for our independent boarding schools.

While several schools reported that they are no longer calling their local public health official upon receiving news of a COVID-19 case (due to the growing number of cases), we still encourage schools to partner with public health where possible. Additionally, certain jurisdictions may have additional requirements or guidance regarding both cleaning and closure.

For more information about handling a case of the virus on campus, please refer to Sickness on Campus/Individuals Connected to the Virus on Campus and Boarding Schools and Quarantine/Isolation.

Financial Considerations (Tuition, Fees, Endowments, Gifts)

Tuition and Fees 

Many of our schools are grappling with how tuition and fees will be impacted by the move to remote learning
and the uncertainty of the future. We can all agree that tuition supports an entire ecosystem, including many economically vulnerable employees. Further, this ecosystem must be maintained as schools move to provide robust online learning while maintaining campuses.

For more on this topic, please review:

Tuition Plans and TILA

In response to the COVID-19 public health emergency and the resulting uncertainty and financial impact being felt by many families, some independent schools are considering changes to their tuition payment plans for the 2020-21 school year. Offering alternate payment schedules and increased flexibility can be an important way to support your families and, ultimately, your school. However, schools must pay close attention to the types of tuition payment plans under consideration. In certain circumstances, independent schools are considered creditors and must therefore comply with the federal Truth in Lending Act (TILA) and any corresponding state laws. For more on this topic, please read COVID-19 Considerations: Extending Tuition Payment Options? Keep TILA in Mind.

Endowments and Fundraising 

The COVID-19 pandemic will continue to affect the economy long after this disrupted school year ends. For many independent schools, the economic situation will require careful analysis of the school’s finances and difficult decisions about spending. To make these decisions, the board of directors needs to understand its ability to spend the various funds the school holds. 

At a fundamental level, there are two questions to ask in connection with every separate fund:
  • How can we spend this money?
  • When can we spend this money?
For a closer look at these two fundamental inquiries, please read COVID-19 Considerations: Understanding Your Assets: Endowments and Restricted Gifts.

International Students (Visa Status and Online Learning)

On July 6, the Student Exchange Visitors Program (SEVP) issued a broadcast message, guidance, and FAQs that will affect nonimmigrant students taking online classes due to the COVID-19 pandemic for the fall 2020 semester. 

During spring 2020, these students were temporarily allowed to continue their academic courses fully online and maintain their F-1 visa status. The new guidance, which the U.S. Department of Homeland Security will publish as a temporary final rule in the Federal Register, modifies the temporary procedural adaptations related to online instruction that were made in March. While we are still evaluating the impact of this new temporary final rule, it complicates the landscape for international students and the schools that host them. 

The rule could significantly disrupt the plans of international students and the ability of independent schools to meet enrollment goals. International students who are in the U.S. but whose schools will offer entirely online instruction in the fall (or switch fully online at some point) will be forced to leave the country. Students currently in their home country whose schools offer in-person or hybrid learning will be unable to maintain their active visa status, though they should still be able to take the online courses. Depending how long the student is out of status (i.e., how the five-month rule is applied), students may have to obtain additional documentation to re-enter the U.S. after the current crisis subsides.

Here are the essential take-aways as we understand them at the moment. Please note that the guidance could change and does not apply to any other restrictions or limitations that students might encounter (e.g., travel bans, visa issuance process, health and safety concerns, etc.). Additionally, on July 8, MIT and Harvard filed a lawsuit seeking to block the rule, which NAIS will follow closely. For guidance particular to your situation, please consult with your legal counsel.

Critical Deadlines
  1. If your school has decided to go entirely online for this fall, you must notify SEVP by July 15, 2020.
  2. If your school will have a hybrid plan (in-person and online classes), a delayed or shortened session, or offer solely in-person classes, then you must notify SEVP by August 1, 2020. 
  3. If your school will meet in-person or in a hybrid mode this fall, then you will need to issue new Forms I-20 to each student and certify that the school will not be operating entirely online, that the student is not taking an entirely online course load, and—if applicable—that the student is only taking the minimum number of online classes required to make normal academic program progress. This must be completed by August 4, 2020.

Important Status Requirements
  1. Inernational students with F-1 visas may enter the U.S. and attend school provided classes are all in person or the students are not taking an entirely online course load (i.e., hybrid). If the school shifts to entirely online, then the students will be out of status and will need to leave the U.S. and return home. 
  2. International students who are outside of the U.S. can keep their F-1 visa status active if the school is entirely online next fall and the student is taking a normal course load or a load specified as being for a reduced course of study. 

Likely Implications for Your School
  1. If your school is able to provide a continuous in-person program that can accommodate international students (and they are able to enter the country), then their visa status will remain active. You will still need to issue new I-20s to all of these students with the certifications noted above by August 4, 2020.
  2. If your school needs to shift back and forth from in-person or hybrid to entirely online instruction due to COVID-19, this rule will make it difficult for international students to remain in active visa compliance. This may result in some families reevaluating their choice to pursue an education in the U.S. Schools should make sure they communicate with families and explain how they plan to work with their international students generally and how they will provide a robust online learning experience for their students even if students will no longer have an active F-1 visa. Students can take online classes from abroad even if the school is entirely in-person or hybrid; however the student will not be in active status.Depending on the length of their absence (and the exact application of the five-month rule), students may have to obtain new documentation and go through new rounds of interviews at U.S. embassies and consulate offices, many of which are not expected to open until sometime this fall. 
What We Don’t Know
  1. We don’t know if SEVP will make future accommodations to respond to COVID-19 as it did last March to make it possible for international students in the U.S. (and abroad) to take all of their courses online and to remain in active status. For example, we don’t know how SEVP might handle situations in which schools need to shift from in-person to online learning for an extended period or move from a hybrid plan to mostly or all online courses due to local or regional spikes in cases.
  2. We don’t know when U.S. embassies or consulate offices will fully reopen, their capacity to conduct in-person visa interviews, or the time it might take for a student with an F-1 visa to return to campus if such a visit is required.
  3. We don’t know the impact this guidance might have on an international family’s decision to continue their child’s education at an NAIS school or whether they might seek alternatives, whether in their home country or another destination. 

What We Do Know
  1. NAIS schools offer extraordinary and unique learning experiences for all of their students, domestic and international. 
  2. NAIS is committed to international student access to independent schools. We believe their contributions are invaluable and help to make member schools the outstanding institutions that they are.
  3. NAIS will continue to work on behalf of its members on this issue.
  4. NAIS will continue to keep members apprised of any changes to the guidance of July 6, 2020.
  5. NAIS will provide resources to help schools with their international student retention and recruitment efforts.
For prior SEVP guidance on COVID-19, see these COVID-19 FAQs and guidance documents with information related to extended school calendars, student records if the student is unable to return to the U.S. once the school returns to “normal” operations, and several other changes. NASFA has a good summary here. Please note that some of these documents may get superseded by the July 6, guidance and rule.  

For example on March 26, SEVP issued a new broadcast message to designated school officials (DSOs) and principal designated school officials (PDSOs) at SEVP-certified schools about New Electronic Form I-20 Issuance Guidance. Due to COVID-19, DSOs may electronically send Forms I-20 to student email addresses listed in SEVIS. In the case of a minor student, the email address may belong to their parent or legal guardian. Schools do not need to request permission from SEVP or report their plans to electronically send Forms I-20 as part of their COVID-19 procedural changes. SEVP has identified the following methods to sign and send the Form I-20:
  • Email a scanned version of the physically signed Form I-20;
  • Email a digitally signed Form I-20 using electronic signature software; or
  • Email a digitally signed Form I-20 that contains a digitally reproduced copy of a physical signature. 
Only approved PDSOs and DSOs may physically sign or input their own digital signature to the Form I-20. Individuals who are not approved on the school’s Form I-17 (Petition for Approval of School for Attendance by Nonimmigrant Student) may not input a DSO’s signature—either digital or physical—to the Form I-20. Improper issuance of the Form I-20 in this manner may constitute grounds for withdrawal of SEVP certification. By signing the Form I-20 or inputting their digital signatures, PDSOs and DSOs attest that they are the approved individuals issuing the Form I-20. According to the SEVIS Fall 2020 FAQs, electronic I-20s will still be allowed.

Thank you to Ioana Wheeler, NAIS director of global initiatives, and Jefferson Burnett, NAIS vice president, for their meaningful contributions to this resource.

Remote Learning and Related Alternatives

Within the world of “remote” or “distance” learning plans, our schools are emerging in three camps, which we may see in the fall as well (in the event of a second wave):
  1. Online learning (a.k.a. distance/remote/virtual/remote)
  2. Non-internet-based remote learning (a.k.a. distance learning) 
  3. A combination of online and non-online learning plans
These “plans” will inevitably vary greatly across the universe of our schools, and will be impacted by factors such as student ages and learning needs, school resources, and community culture. We know that many of our schools are in poor broadband areas or support communities without the resources necessary for continued online learning. We have learned that some of these schools are considering whether they can provide robust remote learning, limited supplemental learning, or whether they will actually close the school temporarily. 

Any remote services will vary by school and may evolve over time. While some schools are attempting to provide an equivalent education to students via distance-learning measures, others are preparing to provide a few hours of continued learning or time for connection and socialization. As schools plan for the remainder of the school year (and possibly beyond), consider the following:
  • Devices and Internet. Are the requests you are making reasonable in your community? What can you do to support employee and family needs?
    • We have learned that some schools are telling families that if they do not have internet, the school will come to the family’s home and install it for them. 
    • The Comcast Internet Essentials program is offering two months of free service for households that qualify and is increasing available internet speed. The organization EveryoneOn also helps connect families to low-cost computer and internet offers.
    • The education community (including the organizations in the EdLiNC coalition) is pushing for additional funding to close the “homework gap” and support students who are struggling with digital learning at this time. If you are interested, please fill out this survey from Digital Wish, so we can gauge how many students are missing devices and connectivity.
    • Schools looking for support on technology related needs can join weekly town halls from ATLIS.
  • Learning Differences and Support. How will you support those in your community who have a variety of special educational needs? The U.S. Department of Education issued this Q&A document on providing services to children with disabilities during this time and a short webinar focused on online learning and website accessibility. Though these resources (and laws cited) are focused toward public schools, other similar laws may apply to private schools and the resources still include useful tips. The Center for Online Learning and Students with Disabilities has general resources and is working on developing new tips and strategies to support people during this COVID-19 crisis.
  • Oversight and Consistency. How will your school work with faculty and provide oversight to ensure a quality level and consistency that the school determines is reasonable? For example, if the goal is to provide a few hours of continued learning, are we scaling the learning across the board, so that two different faculty are applying the standard equally to two different courses?
  • How will your plan impact tuition, grading, and graduation?
  • Communication: Are you prepared to communicate any of these goals or plans to families in a way that provides useful information while reserving flexibility for the school in the face of unknown future variables?

Online Learning/Meeting Policies and Protocols 

You are all doing amazing work! We do not mean to add to it, but it is time to consider what you can do in the way of policies, protocols, or at least education regarding online schooling. We’ve included a list of considerations as you move forward:
  • Oversharing: What are you communicating to employees and families about video “backdrops”? What are they inadvertently sharing that could compromise the relationship or confidentiality, or distract from learning? What other challenges are presented by turning the bed/living-room into the classroom? You would be surprised (or maybe you wouldn’t) about the “oversharing” stories we’ve heard! Remember, this is happening with our employees and our families—we should be educating, supporting, and reminding both communities.
    • Please also note that during “screen sharing” others can see your browser tabs—be mindful of all angles! 
    • It is also important to remind teachers and families to control the “mute” feature.
  • Boundaries and Support
    • Are 1:1 meetings permitted? Are you recording them and periodically monitoring them? Are you discussing appropriate boundaries? Beware of educators who want to overshare or over-save-the-day. We never want our teachers playing therapist, especially not online.
    • Now is not the time to relax our awareness and education about healthy boundaries, harassment, abuse, and bullying. In fact, with authorities reporting an uptick in online abuse, schools should be hypervigilant about online grooming behaviors, cyberbullying, and other forms of inappropriate engagement with and among students (and employees). Please make sure your school continues to educate employees, students, and families on healthy relationships, what unhealthy behaviors might look (or feel) like, and how community members can come forward if they think they or someone they know might be suffering from inappropriate conduct by another.
    • Do you permit use of the direct chat feature between educators and students? Have you communicated your position to both employees and families?
    • How are we educating and supporting our parents as they navigate this challenging new terrain? How are we emphasizing the importance of parent partnership without creating helicopter parents? Again, the family room is now the classroom, which means we face new challenges in this relationship.
    • What other practical tips can you give employees and families about using these platforms? Whether it be muting, sharing, communicating, or reminders to remove nonessential devices and close browser screens to maximize internet speed—every little tip could help!
  • Recording Classes/Meetings: If you are recording classes or meetings, do you have appropriate permissions under applicable law? We encourage you to consult with your attorney on this matter. Please read COVID-19 Considerations: Recording Classes and Meetings for additional guidance. 
  • Policies and Authorizations
    • What do your existing “acceptable use policies” say? Are they sufficient and should you redistribute them or call attention to them for employees and families? Do they need updating or a brief addendum?
    • Have you assessed any consents or disclosures necessary to coordinate online counseling, including communications between school counselors and external mental health professionals? We encourage you to consult with your attorney to assess any needs on this front.
    • Do you require additional consent from families under your vendor contracts for students under the age of 13? For more on this, please visit  COVID Considerations: Copyright & COPPA.
  • Understanding COPPA and Copyright: Read COVID Considerations: Copyright & COPPA.
  • This article discusses privacy and security during videoconferences.
  • In addition, NAIS has compiled a list of online and distance learning resources.

Student Attendance and Grading

Attendance/Length of School Year

As several schools prepare to be online or engage in other distance learning measures for the remainder of the school year, administrations are starting to worry: What does this mean for attendance regulations? As these vary by state, we strongly encourage schools to contact their state associations, state departments of education, and local attorneys to understand the shifting landscape of compliance. Please also be mindful of SEVP regulations regarding international students’ attendance.

We have learned that certain states are implementing flexible rules, even waiving requirements regarding the length/number of days of/in a school year. However, some of these measures are unclear, leaving schools to wonder if online hours will count as attendance hours or if online learning will be considered substantially equivalent to in-person learning. Even more worrisome, in this regard, are the distance learning measures that are not online.

Our best advice right now is to document, document, document! Yes, this document was drafted by a lawyer—and we love documentation—but it is your ally here. The only way to demonstrate the time spent preparing, teaching, and working with the children will be to document it. We have learned that several of the online platforms currently utilized will track logins and other usage metrics. Please encourage your faculty to supplement this with their own notes. While this will require extra effort, even attempts at gauging asynchronous learning time is advised.

Grading

We have been hearing about a range of approaches regarding grading during remote learning periods. Some of our heads have implemented a temporary pass/fail period, for the whole school (ostensibly as it ramps up its remote learning plan) or for certain grade levels. While this has increased anxiety for some parents, schools have reported it’s intended to decrease anxiety in students during this difficult time. Some schools are concerned that turning to a pass/fail or “no grade” method for any substantial length of time may signal to families that the education is not the same quality as in-person learning. This does not mean this move is off the table; on the contrary, we are hearing of many schools implementing it. However, consider whether it is right for your school and, if so, how best to communicate it to families. Communication is key.

Each school must determine which approach is best for its program, recognizing that approach may shift. Despite the highly individualized nature of this decision, this is a great topic to explore with peer schools in NAIS Connect or to raise with your state associations.

Educating and Supporting the Whole Child

As our schools implement their remote learning plans, the question on many minds is “how do we care for the whole child … remotely?” Obviously, the importance of parental partnership is underscored now more than ever. However, our schools are communicating their eagerness to do their part and, in their minds, that means more than rote, unengaging video lectures. Many of our schools are considering how to engage in a holistic approach to online learning—attending to their students’ mental and physical health during this challenging time. They are thinking about how they can maintain school services, such as counseling support, and extracurriculars, such as sports or clubs. In short, how can schools create and nurture a community of isolated students?

We wanted to share some of the ideas we’ve heard:
  • Online yoga instruction and other physical activities for elementary students 
  • Short physical education videos for students of all ages 
  • Brief educational modules such as those offered by BrainPOP
  • Social/club virtual “hangouts”
  • Using strategies to establish “normalcy,” such as encouraging teachers to use students’ names (which can sometimes be difficult or not top-of-mind when they are not in the same physical space, interacting in person), to make students feel connected and seen
  • Online school counseling

Learning Support, Counseling Services, and College Admissions

For those of you with counseling services and learning support, now is not the time to pull away from these crucial services. In fact, as we physically distance, these connections are more important than ever. We strongly encourage schools to consider how to focus on learning support, counseling, and other student support services. It is our understanding that various consultants have advised against certain support or 1:1 services during this time. As always, each community needs to make decisions that best align with its mission, applicable law, resources, and culture. However, where supportive auxiliary services and 1:1 outreach can be safely supported, we encourage them.

We know that many of our schools are actively working to maintain counseling and support services for students to provide social and emotional support as well as college counseling. Consider empowering counseling programs, learning specialists, and other “support groups” in the school to think about how they can best serve the community.  Help them set up a “virtual office” with virtual office hours during campus closure. We at NAIS remain concerned about the mounting anxiety in our students, and we fear that virus concerns and isolation may amplify this problem. Further, a move to virtual learning should not prohibit counselors from communicating with students’ external mental health care providers, as they would in the ordinary course of business. Just please be sure to have signed* consent forms on hand! Counselors could continue to meet with and support students remotely,but should also be looped into the school’s overall remote learning plan. They could be a valuable resource to provide programming or activities that address mental health. The American School Counselor Association has this resource for planning for virtual/distance school counseling during an emergency shutdown.

Additionally, we encourage schools to consider how school closures or student illness may impact college counseling and support during the higher education application process. Take time to think about how this element of school can be conducted remotely, so that we do our best to ensure that students’ long-term education goals are not unduly impacted by this virus (or at least that we are doing what we reasonably can to minimize that impact). We are all aware that there are heightened sensitivities and anxieties around college applications, which will be further exacerbated by this evolving situation.

As a related sidenote, this article discusses changes and cancellations for mandatory state standardized testing and the ACT/SAT. The April 4 administration of the ACT is being rescheduled for June 13, and the May 2 administration of the SAT has been canceled. The College Board has remote support for Advanced Placement (AP) students and teachers and is currently formulating a plan to allow students to take their upcoming AP exams online. The International Baccalaureate (IB) program is cancelling its May 2020 schedule as well. Many states are also pursuing postponement or cancellation of required statewide tests and the U.S. Department of Education announced it will grant such waiver requests. This website is tracking state-by-state developments in this area.

*This is not to suggest that we should make parents travel to a closed campus to submit these.

Planning for Summer and Fall

Reopening Campus and Risk Management

According to public health experts, the earliest a vaccine will be available to provide protection from the virus that causes COVID-19 will be sometime in 2021. This means that if schools reopen their physical campuses for the 2020–21 school year, students will be at risk of infection from the virus. Schools that reopen will, of course, take steps to try to safeguard everyone in the school. Nonetheless, there is no way to guarantee that returning students will be protected and in all likelihood some students will contract the virus. Consequently, independent schools are understandably concerned about their legal risk if they reopen their campuses prior to the widespread availability of a vaccine. Independent schools are more vulnerable to lawsuits by families of students who contract the virus at school than public schools because public school systems may have statutory immunity or other legal protections based on their particular state laws.  

For more information about reopening and the legal standard of care, please read the advisory COVID-19 Considerations: Key Steps for Mitigating the Risk of Lawsuits When Initially Reopening Independent Schools.

For an overview of current guidance and rules from federal, state, and local officials, public health authorities, and employment law considerations involved in reopening, please read the advisory COVID-19 Considerations: Reopening Your School Campus: The New Normal Will Be Anything but Normal. This advisory discusses current White House guidelines, cleaning and disinfection guidelines from the CDC and other public health officials, and information from the EEOC. While the government declined to formally release the more detailed school-based reopening guidelines discussed in the advisory, it did issue this flowchart to assist in reopening decisions and this guidance for operating schools.

For more information about employment concerns related to reopening, read the Employee Considerations section.

Sickness on Campus/Individuals Connected to the Virus on Campus 

Please note that the CDC recommends “isolation” of sick individuals, which is a step further than “quarantine.” Isolated individuals should avoid contact, as much as possible, with all people and animals, even within the same home/building.  

Schools, both day and boarding, should be prepared to handle illness on campus. Be aware of coronavirus symptoms as well as influenza (flu) symptoms, and make sure that your school nurse and other staff are aware as well. In school communications, emphasize your general illness or communicable disease policies, and urge students, staff, and visitors to refrain from coming to school if they are ill. 

Be prepared to  isolate someone who is at school and exhibiting coronavirus symptoms. Many schools are designating an internal isolation space where the person (usually a student) can stay until transportation arrives or other arrangements can be made. If the affected individual is an employee, be prepared to pivot with a substitute, combined classes, or other alternate means. 

For boarding schools, this measure will be particularly important. For more information for boarding schools, please see the Boarding Schools and Quarantine/Isolation section.

Additionally, schools that have international students living with homestay families should be in contact with their third-party operating vendor (if they have one), as well as the families themselves, regarding COVID-19 protocol, including what to do and whom to contact if the student or others in the household suspect or confirm exposure. Schools should review their homestay agreements and make sure they have a firm understanding of what must be done (and by whom) if a student is displaced from the homestay arrangement. 

Schools should also consider what communications should be sent to families about these plans and whether preemptive coordination with families makes sense. 

Have a plan for contacting your school’s local public health official if there is a concern about the virus on campus or a known incident on campus or in the school’s community. This information may not arise during normal business hours; be sure to secure the after-hours contact information for your local public health office. And, of course, be prepared to thoroughly clean any potentially contaminated areas. For more information, please review the Close-and-Clean Response to Sickness on Campus section.

At this point, it’s important to mention school policies. We recommend that schools develop and implement a communicable disease policy in their handbooks, reserving the right to exclude individuals from the school.

As always, please make decisions based on facts and not on suspicions or assumptions about known or perceived national origin.

We are aware that many of our readers are considering school-based contact tracing. For more information on contact tracing, we’ve included links to two helpful articles:

Boarding Schools and Quarantine/Isolation

In the event of a COVID-19 case or outbreak on campus, our boarding schools are in a particularly challenging position. Schools have been preparing to follow CDC guidance for the quarantine or isolation of ill students and employees. We encourage all of our boarding schools to think through the plans for multiple simultaneous COVID-19 cases.

Many schools are communicating with families that it will be the family’s responsibility to come and care for the child. Parents/guardians of sick students are being told that they must immediately come and remove the child from campus. Some schools are considering partnering with long-distance parents to find local housing or accommodations where a parent/guardian may care for a sick student in isolation. In the case of international students, some schools are notifying families that the student will need to reside with the domestic guardian.

We have learned that some of our schools have the space to designate multiple sickrooms—or even a floor of a building—for isolation of the ill. Others are prepared to pivot and turn a guest house or other building into a “sick house,” while others still are exploring Airbnb and VRBO options. The challenge will be whether to secure a place now to have available long-term or to book once a school has one or more cases. There may also be some resistance on the part of the renter, and schools should be willing to commit to CDC-level cleaning of the residence. Undoubtedly, this will require research and thought on behalf of the schools.

For more information on CDC recommendations for cleaning, please refer to the and Close-and-Clean Response to Sickness on Campus section.

Food Service 

 Schools with food-service vendors should consider the following:
  • What does the vendor contract say about cancellation, suspension, or force majeure? Who has the right to make this decision and what are the consequences (legally and financially)? 
  • Review the contract and speak to your vendor about the possible scenario where the contract is not canceled, but workers are out sick and being replaced by substitutes. How are these subs being trained and background-checked before they engage with our students?
  • What training or assurances is your food-service provider making regarding health training for food-service staff? 
For schools that handle food service internally, health and safety training will be crucial, as will the consideration of substitute workers, as referenced above. Schools may consider temporarily limiting certain foods or food-services processes they think may lead to enhanced germ distribution.

Employee Considerations 

In addition to the challenge of educating students remotely, our schools are now navigating a variety of employment challenges in this new phase of the COVID-19 response. In addition to the information provided herein, there are a plethora of good resources available to employers during this trying and confusing time: 

Preparing for the Return of Faculty and Staff

Many employers are making plans to reopen now that governors and local officials are loosening pandemic-related restrictions. In some ways schools are no different; most independent school administrators, like leaders of other businesses, are looking forward to “getting back to normal.” But “normal” may not necessarily mean what it has always meant, and schools, by their very nature, can be more cautious in order to ensure the safety and security of students and faculty.

The timetable for reopening will be different depending on the state. Some states, like Texas, have approved summer camps this year, while others are still debating whether on-campus classes will be permitted in the fall. Nevertheless, now is the time to consider return-to-work issues for faculty and staff. For a review of some of the challenging issues facing school administrators, read the NAIS legal advisory COVID-19 Considerations: Welcome Back! Preparing for the Return of Faculty and Staff.

For information regarding contact tracing in the workplace, read These 3 Numbers Offer A Simple Way To Understand Contact Tracing In The Workplace.

Paying Employees Who Work Less or Not at All

One of the challenges many schools are facing is whether, and if so, how, to pay employees who are no longer working due to a campus closure or who are working in a diminished capacity. Please be mindful that, in all instances, schools should consider the following: 
  • Applicable federal, stage, and local wage and hour laws (including, but not limited to, minimum wage)
  • The exempt or nonexempt status of the employee
  • Applicable federal, state, and local family and medical leave laws, as well as disability laws
  • Contractual obligations set forth in any employment agreements 
  • The school’s mission and culture 
  • The school’s economic reality for short- and long-term planning 
  • The status and applicability of emergency legislation from the federal or state government (i.e. the Families First Coronavirus Response Act, which is currently under consideration by Congress). 
The overwhelming majority of schools that have reached out to NAIS to share their intentions do plan to pay employees some or all of their salary/wages in the short term while longer-term plans are made. This is a generalization, and the nuances of this feedback are discussed in greater detail below. We understand that some of our schools may have to invest money in online learning while losing money in prospective enrollment. Every school is different, with different demands, needs, and resources. There is no one “right” path here, and we understand that every school is doing its level best in this challenging time. 

No Work or Diminished Work Due to Closure 

We’ve received feedback from our schools regarding their plans for utilizing and paying employees. Many of these plans are either temporary or in draft form. As the landscape of this situation changes, so do the plans. We have learned that some of our schools are implementing or considering the following with respect to the work employees will do and how they will be paid:
  • Reassigning the employee to a new position or engaging employees in new projects
    • As schools move to online learning, new challenges arise. Many schools are thinking of how they can utilize employees in new, innovative ways remotely.
    • Certain grounds staff are being trained to professionally clean per CDC recommendations, and will contribute to campus cleaning.  
  • Paying the employees their standard salary or wages, as if normal hours were worked
    • Many of these schools have been careful not to make promises about the future, but have limited this window to the short term while they evaluate resources and plans. 
  • Paying the employees a reduced amount or a lump sum (i.e., a “stipend,” as several have informed us)
    • It is important that applicable laws and contracts be considered.
  • Requiring or permitting employees to utilize accrued paid leave 
    • We have heard that some of our schools are expanding paid leave to apply to additional or all employee groups that were not previously covered under the school’s policy, on a prorated basis.
  • Placing all non-working employees on paid leave 
    • As per the prior scenario, this has meant expanding paid leave policies in many instances. 
  • Placing all non-working employees on unpaid leave 
    • Unless the law, employment contract, or school policy dictates otherwise 
      • In this instance, we do not recommend unilaterally altering the school’s paid leave policy. We’ve seen schools alter these in response to COVID-19 to be more generous, but not less. 
Please note that reducing an employee’s work hours or placing that employee on leave may affect the employee’s eligibility for benefits under the terms of the school’s benefit plans (e.g., medical). As schools work on their employee planning, they should consult with their broker, insurance provider, or a benefits attorney to assess this potential impact on employees. 

No Work or Diminished Work Due to Illness 

Congress passed the Families First Coronavirus Response Act (H.R. 6201). Please refer to Other Federal Guidance, News, and Resources for additional information. The emergency paid sick leave and paid family medical leave provisions apply to employers with fewer than 500 employees. The bill also provides a payroll tax credit for employers to help offset these costs.
Schools are already seeing COVID-19 cases in their communities, and have had employees unable to work as a result. In addition to the aforementioned legislation, schools are applying their standard sick leave policies. In other words, many schools are proceeding with “business as usual,” in that they are treating COVID-19 absences/illnesses as they would any other illness.  Other schools are expanding these employer paid sick leave policies, temporarily, to include additional categories of employees who would otherwise not be covered.  

Any changes in policy or application should be consistent with applicable federal, state, and local wage and hour laws, leave laws, and disability accommodation laws, including the many paid sick and family leave laws in various jurisdictions around the country. The U.S. Department of Labor (DOL) published a Q&A regarding public health emergencies and the Fair Labor Standards Act and a Q&A on the Family Medical Leave Act. As noted above, the federal government is currently working on emergency paid family and medical and sick leave plan, and some states are beginning to take similar action. Therefore, the aforementioned guidance from the DOL may change as more emergency legislation and rules are passed. Due to the constantly changing legal environment and developing practical considerations on the ground, we advise schools to consult with legal counsel prior to implementing any sick leave plan or policy changes and to communicate any changes to employees. To the latter point, we cannot overstate how crucial ongoing community communication is during this time.

Hiring and Contract Renewal Season

Spring is usually the time to focus on workforce retention, growth, and turnover. Needless to say, the pandemic has completely upended many schools’ hiring and retention plans. As with any topic, we are seeing a broad range of plans and responses.