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Calling The Shots: Best Practices For Independent Schools Responding To Vaccine Concerns

[March 3, 2015]  Vaccines (and whether to vaccinate teachers and children) are hot topics of debate across the nation. The recent measles outbreak linked to Disneyland has intensified this discussion and caused a groundswell of anxiety on independent school campuses. We recommend that schools take this opportunity to implement a comprehensive Immunization And Communicable Disease policy to reflect a school’s desired practices and applicable governing laws regarding vaccination requirements and non-immunized students on campus. This will ensure that schools have the flexibility they need to respond to communicable illnesses, while also protecting the interests of students, parents, employees, and other community members.

Legal Requirements And Duties

As a preliminary matter, we advise schools to become familiar with applicable law and to determine whether their policies and practices are in compliance with legal mandates and best practices. Every state requires schoolchildren to be vaccinated against certain diseases unless they fall within an exemption based on medical reasons, religious beliefs, and/or personal or philosophical beliefs. However, the intricacies of the laws – including the required vaccines, the types of exemptions recognized, and the documentation required for proof of immunization and exemption – vary significantly from state to state.

In Massachusetts, for example, schools may not admit an unimmunized student unless that individual has satisfied the criteria for a medical or religious exemption or the individual is homeless. Massachusetts also requires schools to keep a complete and up-to-date immunization record (or the required exemption documentation) on file for every enrolled student. Other states, such as Connecticut, also require schools to annually fill out a form disclosing student immunization information to the Department of Public Health.

Once a school has identified applicable laws, we recommend conducting an internal audit to confirm that the school’s immunization policies and practices are in compliance. A school should also confirm that any information on file (and/or provided to state agencies in accordance with applicable laws) is accurate.

Disclosing Immunization Information

Schools may receive requests from parents, teachers, or other individuals to provide information about student immunization rates on campus. Whether exemption rates may be tracked and/or disclosed depends upon applicable laws. Some states, such as Colorado, require schools to track exemption rates and to report this information to students’ parents directly. Other states, by contrast, only permit disclosure to designated state agencies. Connecticut requires schools to annually report student immunization information but defines this information as confidential. In Massachusetts, schools are permitted – but not legally required – to disclose student immunization rates to the Department of Health, which, in turn, makes this information publically available. In some states, disclosure to parents, teachers, or other individuals may violate students’ privacy rights.

Hence, understanding when a school should disclose information, and to whom it may disclose it, is an important component of managing legal risks in this area. Addressing this as part of a comprehensive policy will not only help the school avoid unauthorized disclosure of confidential information, but will also reassure parents who may be concerned about children’s privacy and even deter individuals from asking for immunization information.

Policies For Exclusion Of Non-Immunized Students

Perhaps the most contentious issue that schools will confront is whether a non-immunized student will be excluded from campus, and if so, under what circumstances. Some independent schools have sought to prohibit any non-immunized student from enrolling, regardless of whether the individual meets the state’s exemption criteria. This approach could create potential legal claims, such as discrimination or breach of contract. Moreover, this approach may seem too Draconian.

Accordingly, we recommend implementing a policy that reserves the school’s right to exclude any student who has a communicable illness, has been exposed to an infected person, or is susceptible on account of non-immunization, in the event of a vaccine-preventable or any other communicable disease incident. The goal with such a policy is to provide the school with a wide degree of latitude in responding to situations on campus that affect members of its community. Equally important, the policy will provide parents with notice of the school’s right to act.

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An Immunization And Communicable Disease policy can effectively address all of these issues to ensure that the interests of the school, its students, and its employees are well protected. A well-crafted policy will withstand the future unknown: whether it is measles, Ebola, or any other number of communicable diseases making the headlines, a school can rely upon this policy to adequately and effectively respond.

Finally, another component to an effective risk management strategy is to provide the school with grounds to manage or exclude staff and faculty when the threat of a communicable disease arises. As such, this may be an opportune time to visit the employee handbook’s communicable illness provision to determine if it is in sync with the school’s goals and best practices.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for complying with state vaccine legislation and/or managing non-immunized students on campus, or if you would like our assistance in drafting an Immunization And Communicable Disease policy.

Summer Is Over, But Are The Dog Days Gone? Recommendations For Animal-Presence Policies On Independent School Campuses

[September 19, 2014]  Dog-friendly school campuses have become increasingly controversial in recent months. While there used to be two primary camps (those that encouraged a pet-friendly campus and those that prohibited pets altogether), the lines are getting more blurry (furry?) now. For example, a student may wish to bring the family ferret on campus for show-and-tell or a faculty member may want to nurture hamsters in the classroom to teach students about responsibility. Or a teacher, student, parent or visitor may require a service animal to accompany him or her while on campus.

Adopting written animal-presence policies and practices can help to ensure that a school responds to situations like these in a way that minimizes liability and risk, and maximizes compliance with relevant legal obligations as well as each school’s pet culture.

On the pro-pet side, advocates assert that pet-friendly policies offer benefits like reducing faculty, staff and student stress, improving employee job satisfaction and increasing the overall friendly atmosphere on campus. We see many schools allowing faculty members to keep puppies in the classroom for a few months. But would such a school allow a kitten? A baby snake? How and along what lines do we discriminate regarding pets?

Notably, a service animal may only be lawfully excluded from campus if, after a case-by-case evaluation, a school determines that the particular service animal poses a “direct threat” to the health or safety of others. Thus, the need for a service animal on campus may trump a student or employee’s allergy or pet-phobia (even if deemed a disability under the ADA and thus also requiring an accommodation).

On the no-pet side, one significant risk arises from the possibility that an animal may harm a person, another animal or property. In Massachusetts, for example, an owner or keeper of a dog is strictly liable for the harm it causes. While Massachusetts courts have not addressed the issue of whether an employer may qualify as a “keeper,” two cases in Connecticut have rejected this conclusion under a similar statute. Nonetheless, instances of dog bites in carpool lines are quite common. A school could potentially face liability under a general negligence theory in the event that a pet harms someone or something even if a specific state statute does not address this scenario. Indeed, a school could even be deemed liable to the pet owner if a pet is injured while on campus (accident in the carpool line or such).

In light of these competing schools of thought, independent schools may want to simply prohibit students, their families and employees from bringing any pets or animals on campus. If such a policy seems too draconian (or simply unworkable on, for instance, a boarding school campus), we recommend that schools adopt a written policy requiring anyone who wishes to bring an animal on campus for recreational purposes to sign an indemnification agreement and obtain insurance covering any damage or injury that might be caused by the animal.

If, however, after careful consideration, an independent school decides to welcome pets on campus, we recommend considering some or all of the following policies and practices:

  • Adopt a policy that distinguishes between “pets” and “service animals,” as the two categories should be treated differently;
  • Require pet owners who wish to bring a pet on campus to sign an indemnification agreement and obtain insurance covering any damage or injury by the pet or to the pet;
  • Obtain parental consent from all relevant parents before welcoming pets in the classroom;
  • Establish pet-free areas and/or permit individuals with animal-related issues to work from other locations while animals are on campus; and
  • Implement a protocol for responding to an animal’s aggressive behavior, including banning poorly behaved pets.

If an independent school prefers to prohibit pets on campus, we recommend addressing the following:

  • Adopt a strict no-pet policy that does not differentiate among dogs, cats, puppies, kittens, ferrets, gerbils, etc.;
  • Distinguish between pets belonging to faculty who live on campus and pets that are “visiting” campus; and
  • Clarify that service animals do not fall within the pet policy and that service animals will only be excluded from campus if, after a case-by-case analysis, the school determines that a particular service animal poses a direct threat to the health and safety of others.

In addition, we recommend updating both Employee and Parent/Student Handbooks to address such pet policies.

If you have any questions about best practices for pet-policies and protocols, please do not hesitate to contact a member of the Firm’s Education Practice Group.

Getting It Write: Does Your Student Handbook Create A Contract?

[April 29, 2013]  In a stark reminder for schools across the country, a federal court in Massachusetts recently allowed a lawsuit to go to trial on the question of whether an independent school breached its contract with a student by failing to follow the school’s student handbook. The Judge opined as follows: “the policies, regulations and procedures contained in the student handbook are contractual in nature and binding on the school and its students.”

At the Firm, we are seeing a significant increase in cases around the country brought under similar theories.  For instance, one of our school clients was recently sued (as well as the Head of School, Associate Head of School, Head of the Upper School, Board Chair and athletic coach), on a theory that the bullying plan was contractual as it was included in the student handbook, which the family alleged created a contract.

As school winds down for the year, now is the time to ensure that your student handbook is accomplishing the goals that you have established.  We urge you to contemplate these questions:

  • Do you want your students to be required to follow the student handbook?
  • Do you want your school to be required to follow the student handbook?
  • Do your students and/or parents sign an acknowledgment form for the student handbook?  If so, does the acknowledgment form create a contract or not?
  • Does your enrollment agreement reference the student handbook? If so, does it incorporate the student handbook into the enrollment agreement or simply reference it?

These questions should be considered within the context of relevant case law pertaining to student handbooks and student handbook disclaimers in each state.

We encourage each school to carefully contemplate the answers to these questions and to strive to ensure that all relevant school documents are coordinated in order to accomplish the school’s goals.

Please do not hesitate to contact us to discuss the interplay between your student handbook and the applicable state law that governs your student handbook.