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Thought Leadership

Colleges, Universities and COVID-19 – Legal Issues for Leadership

 

Published:

March 22, 2020

Related Service:

Higher Education
 
Alerts

Institutions of higher education navigating COVID-19 face guidance, mandates, and laws that shift hour by hour. Husch Blackwell’s COVID-19 response team is providing answers to key issues impacting operational matters across industries. As our Education attorneys work to support institutional leaders with the unique situations presented at their schools, we are developing tools to provide effective, efficient response.

Colleges and universities are looking for solutions for continuing programs that are the same (in terms of excellence and service) but different (in terms of format, location, or other particulars). Following is a list of issues for higher education administrators to consider as they move their institutions to a new normal.

Health, safety and government orders

  • Following federal (including CDC), state, and local requirements and guidance around shelter, social distancing, and physical preventive measures
  • Changing protocols for health and safety as programs and campuses shift operations, including Clery Act and campus security requirements
  • Restricting employee and student travel: duration, and implications of requirements around personal travel
  • Monitoring, assessing, and addressing employee and student health and potential direct threat to workplace and education environments
  • Issuing notices of health risks, including Clery Act emergency notifications, such as potential COVID-19 exposure in institutional programs and activities
  • Providing student healthcare services: availability of telehealth options and insurance coverage, health center operations and student counseling
  • Quarantines: addressing and enforcing on-campus quarantines; ensuring coverage for essential employees subject to quarantines
  • Responding to government mandates to vacate campus
  • Answering government requests or orders to surrender campus facilities for government purpose (e.g., dormitories as temporary hospitals)

Workplace and student employment issues

  • Identifying employees who can/may work from home
  • Facilitating remote work
  • Establishing compensation parameters and durations for those who cannot work remotely or must reduce hours
  • Assessing needs for employee furloughs, layoffs, or restructuring
  • Onboarding new employees in altered operations
  • Determining parameters for student workers: in-office and remote
  • Addressing issues related to out-of-state remote employees, including tax and licensure issues
  • Assuring compliance with employee privacy concerns and rights around
    • monitoring and inquiring about symptoms and illness, reasons for absence, availability to work, and personal travel history and plans
    • requiring or administering medical exams, tests, and documentation
    • exposure in the workplace
    • excluding those who have been exposed from the workplace
    • issuing necessary notifications
    • using personal protective equipment
    • adopting infection control practices at work and elsewhere
  • Addressing employee refusal to work/travel purely due to personal concerns about outbreaks or exposure
  • Extending tenure and other progression clocks

Academics and remote learning

  • Meeting expectations of and notifying U.S. and state departments of education
  • Meeting expectations of and notifying regional and programmatic accreditors
  • Determining the length of the academic year
  • Shifting to remote learning: modalities, content, institutional resources, and duration
  • Preparing and equipping faculty and students for remote learning: resources and training for faculty and students, supplemental supports, technology and disability accessibility concerns
  • Equipping advisors to address shifts in academic requirements
  • Addressing grading (taking current grade, pass/fail, testing) and academic progression issues
  • Providing ongoing contact and IT resources: support, system capacity, and security
  • Determining application and admission requirements and timelines

Room and board

  • Assessing impact of closed housing on international students and students without safe, secure housing off-campus
  • Continuing operations: alternative options for students (e.g., securing off-campus housing); health and safety issues for remaining students; security and supervision of ongoing operations; potential student acknowledgements/waivers addressing risks of remaining in housing
  • Issuing partial refunds: ability to pay, contractual obligations and exceptions, risk balancing, and financial aid implications

Student development, co-curricular and extra-curricular activities

  • Enforcing conduct codes: in remote work and learning environments, in limited physical staffing scenarios
  • Cancelling athletic, large scale, and other on-ground events
  • Issuing refunds for planned activities: ability to pay, contractual obligations and exceptions, and risk balancing
  • Future athletic eligibility
  • Athletic and other activity-specific scholarship implications

Title IV – student financial aid

  • Informing the U.S. Department of Education of changes impacting aid, including election to shorten academic year
  • Using professional judgment to increase aid awards where appropriate
  • Deciding Federal Work Study issues: availability of on-ground or on-line work for students, paying students who are unable to do their work, institutional share, and community service requirements
  • Following credit balance policies and requirements in cases of refunds to Title IV aid recipients
  • Addressing state and private scholarship and aid requirements considering program adjustments
  • Returning Title IV Funds for students who withdraw from all courses

Research

  • Authorizing essential employees to continue research
  • Caring for research animals
  • Collaborating with health industry and private equity around research and development, including agreements, intellectual property, non-profit considerations
  • Maintaining laboratory safety with skeletal workforce presence

Immigration

  • Determining whether foreign nationals can work from home
  • Onboarding new international employees (e.g., remote documentation and I-9 verification)
  • Confirming that international students maintain status in remote learning programs or if moving off campus
  • Maintaining current immigration authority reporting

Nondiscrimination

  • Addressing requests for reasonable accommodations in a remote work and learning environments
  • Maintaining effective nondiscrimination office complaint and resolution processes

Privacy and data security

  • Monitoring and addressing cyber-security risks around remote work, learning, and services

Contracts and insurance

  • Exploring potential for mutually-agreed adjustments to obligations
  • Analyzing and invoking applicable force-majeure clauses
  • Addressing long-term contractual arrangements—such as for construction, foodservice, and instructional materials—in times of shifting needs
  • Assessing availability and applicability of business interruption and other insurance

Financial, institutional structure and governance

  • For each of the list items above, identifying budget sources and resource availability
  • Considering financial exigency and financial hardship declarations: institutional definitions, fiscal calculations, shared governance, and board decision making processes
  • Accessing governmental resources for financial relief for students and institutions
  • Evaluating bond and other financing opportunities
  • Determining impact of recent developments on plans or opportunities for institutional merger, acquisition, or other structural changes
  • Developing communications plans
  • Adjusting succession plans
  • Planning strategically for next steps in best-case, likely, and worst-case scenarios across operations—including assigning ownership of determining, and implementing, those steps

What this means for you

There are few one-size-fits all solutions. Some legislative relief and regulatory guidance will be forthcoming. Despite the press of rapid developments and swelling emotion, many decisions around these issues need not be made in the moment. Colleges and universities should focus on reasonable, informed decision-making, balancing safety, mission, and risk priorities. Document that you have done your utmost to do so. Keep monitoring new legislation and guidance. Keep supporting one another. We will continue to watch developments and share tools and resources going forward.

Husch Blackwell has launched a COVID-19 response team providing insight to businesses as they address challenges related to the coronavirus outbreak. The page contains programming and content to assist clients and other interested parties across multiple areas of operations, including labor and employment, retailing, and supply chain management, among others.

 

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