Apr 15, 2020

School Districts May Utilize Virtual Instruction and Must Continue To Pay Employees and Contractors During State Of Emergency Or Public Health Crisis

By Joseph L. Roselle, Esq.

On April 14, 2020, Governor Murphy signed into law P.L. 2020, c.27 (Assembly Bill A3904). The law permits a school district to utilize virtual learning to meet the 180-day school year requirement if school is closed for a period of three or more days due to a declared health emergency, state of emergency, or other appropriate State directive.   A school district must submit its proposed plan for virtual learning to the Commissioner of Education within 30 days of the effective date of the law and every year thereafter.  If virtual instruction is used, the same educational opportunities must also be provided to special education students, in the form of an online/virtual platform or electronic communication, or as otherwise required by the student’s IEP.  The decision to move to virtual instruction in this situation is solely the Superintendent’s.  The law requires the Superintendent to consult with the Board beforehand only “if practicable.”

In addition, as a condition of receiving state aid whenever school is closed for more than three days for a state of emergency or public health emergency, and virtual instruction is utilized, the law requires that employees and contractors must still be paid.  In short, the following must be ensured:  

1. Employees covered by a collective negotiation agreement shall be entitled to compensation, benefits, and emoluments as provided in the collective negotiations agreement as if the school facilities remained open for any purpose and for any time lost as a result of school closures or use of virtual or remote instruction.  Extra compensation for additional work beyond the standard work day must be negotiated.

2. Similarly, employees who are not covered by a collective negotiations agreement shall also be entitled to any benefits, compensation, and emoluments to which they otherwise would be entitled had they been working while school facilities remained open.

3. A school district must continue to make payments of benefits, compensation, and emoluments pursuant to the terms of a contract with a contracted service provider in effect on the date of the closure as if the services for such benefits, compensation, and emoluments had been provided, and as if the school facilities had remained open.  These payments must be used by the contractor for payroll and fixed cost obligations only.  The district must attempt to renegotiate the contract(s) to remove indirect costs such as fuel, tolls, and maintenance costs.

4. The school district must continue to make payments to an educational services commission, county special services school district, and a jointure commission, and under any shared services agreement and cooperative contract entered into with any other public entity.  These payments should also be used for fixed costs only, similar to the payments made directly to contracted service providers, and the ESCs must then attempt to renegotiate their own contracts with the providers to eliminate the non-fixed costs. While the law requires the Department of Education to issue regulations governing the implementation of the law, no date has been established by which it must do so. That said, the law is in effect immediately.

Given the law’s broad scope and the fact that the current COVID-19 pandemic satisfies the “declared health emergency requirement,” Boards of Education should review their district budgets, policies and current response to the heath crisis to ensure compliance with the law so as not to jeopardize receipt of future state aid payments. 

If you have any questions about the implementation or effect of A3904, or would like guidance on navigating other potential issues that may arise during the current environment, please contact the school law attorneys at Schenck, Price, Smith & King, LLC.

DISCLAIMER:  This Alert is designed to keep you aware of recent developments in the law.  It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.