Governor Releases Plan for K-12 Reopening this Fall

On June 30, 2020, Governor Whitmer issued Executive Order 2020-142 (“Executive Order”), detailing the steps K-12 schools must take in order to resume in-person instruction this fall. The Executive Order was accompanied by the release of the Michigan Return to School Roadmap, which provides “required,” “strongly recommended,” and “recommended” safety and other protocols for schools to incorporate into their COVID-19 Preparedness and Response Plans (“Preparedness Plan”) that are required under the Executive Order.

The following is an overview of key elements of the Executive Order:

• Funds will be provided to schools under the Coronavirus Aid, Relief, and Economic Security Act for the purpose of developing, adopting, and following the Preparedness Plan required by the Executive Order.
• Every school district and non-public school must develop and adopt a Preparedness Plan that is informed by the Michigan Return to School Roadmap. The Preparedness Plan must be approved by no later than August 15, 2020, or 7 days before the start of the school year, whichever comes first.
• A district or non-public school that does not have an approved Preparedness Plan is not permitted to open or to continue in operation for in-person instruction for the 2020–2021 school year.
• Schools that are in regions within Phases 1-3 of the Michigan Safe Start Plan will not be permitted to provide in-person instruction.
• All schools will be permitted to resume in-person instruction beginning in Phase 4 of the Michigan Safe Start Plan.
• The Preparedness Plan must, at a minimum, include the following items:
  • For public schools, a description of the policies and procedures that the district will follow when the region in which the district is located is in Phase 1, 2, or 3 of the Michigan Safe Start Plan, including:
    • Closure of school buildings to anyone except (1) employees and contractors conducting minimum basic school operations and other necessary in-person functions; (2) food service workers; and (3) licensed childcare providers and the families they serve.
    • Suspension of athletics, after-school activities, inter-school activities, and busing.
    • Offering alternative modes of instruction other than in-person instruction and a summary of materials each student and the student’s parents or guardians will need to meaningfully access the alternative modes of instruction.
    • If the Preparedness Plan relies on electronic instruction, the Preparedness Plan must consider how the district will aid students who lack access to computers or to the internet.
    • Providing for the continuation of food distribution to eligible students.
    • Providing for the continued pay of school employees while redeploying staff to provide meaningful work in the context of the Preparedness Plan, subject to any applicable requirements of a collective bargaining agreement.
  • For all schools, a description of the policies and procedures that the district will follow when the region in which the district is located is in Phase 4 of the Michigan Safe Start Plan, including:
    • Requiring the wearing of face coverings except during meals and unless the face covering cannot be medically tolerated for (1) all staff and students in grades pre-K and up when on a school bus or in hallways and other common areas; (2) all staff when in classrooms; (3) All students in grades 6 and up when in classrooms; and (4) all students in grades kindergarten through 5 unless students remain with their classes throughout the school day and do not come into close contact with students in another class.
    • Prohibiting indoor assemblies that bring together students from more than one classroom.
    • Incorporation of the required protocols governing hygiene, cleaning, athletics, screening, testing protocols, and busing and student transportation from the Michigan Return to School Roadmap.
  • Description of the policies and procedures that the district will follow when the region in which the district is located is in Phase 5 of the Michigan Safe Start Plan.
  • The Preparedness Plan must address each subpart of the Michigan Return to School Roadmap and indicate if the school plans to exclude any protocol that is highly recommended.
• By August 17, 2020, districts and non-public schools must prominently post their plans on the homepage of their websites.
• With respect to special education, the Executive Order requires that:
  • Districts provide in-person instruction to students with disabilities consistent with the students’ IEPs when in-person instruction is provided to students without disabilities. When schools are closed to in-person instruction, districts must strive in good faith and to the extent practicable to provide equal access to any alternative modes of instruction to students with disabilities.
  • While any state of emergency or disaster related to the COVID-19 pandemic continues, districts must comply with guidance from the United States Department of Education (“USDOE”), including its Office of Civil Rights and Office of Special Education and Rehabilitative Services, and the Michigan Department of Education concerning the delivery of alternative modes of instruction to students with disabilities in light of the impact of COVID-19.
  • Districts must, to the extent practicable and necessary, make individualized determinations whether and to what extent compensatory services may be needed for students in light of the school closures during the 2019–2020 school year.
  • Schools will not be penalized due to their inability to provide special education services on account of a school closure prompted by a COVID-19 state of emergency or disaster.
• The Executive Order extends the suspension of strict compliance with certain provisions of the School Aid Act and provisions of the Revised School Code described in Executive Order 2020-65.
• The Executive Order provides that the 10-person limitation on indoor gatherings described in Executive Order 2020-110 does not apply in the classroom setting.
• The Executive Order provides that all schools are subject to the workplace safeguards described in Executive Order 2020-114. Notably, however, some of those safeguards are not required by the Roadmap.
• If a school district straddles regions, the district will be treated as if it is solely located within the region designated as higher risk.
• All schools, public and private, must cooperate with the local public health department if a confirmed case of COVID-19 is identified, and in particular must collect the contact information for any close contacts of the affected individual from two days before he or she showed symptoms to the time when he or she was last present at the school.
• To mitigate the impact of COVID-19 on educational outcomes, a district may adopt year-round school or a year-round program for the 2020–2021 school year or start the 2020–2021 school year before the first Monday in September.
• Any required school closure relating to COVID-19 will not affect an employer contribution, employee contribution, or the accrual of service credit under the Public School Employees Retirement Act of 1979
• The Executive Order must be implemented consistent with existing collective bargaining agreements.

We appreciate that developing a Preparedness Plan that meets the requirements of the Executive Order and the Return to School Roadmap may feel like a daunting task, but our attorneys are available to assist you and are working on a template Preparedness Plan that will soon be available to subscribers of the Back to Work Resource Center.