California’s Safe Schools for All Plan

01.13.2021

On December 30, 2020, Governor Newsom unveiled a proposed “Safe Schools for All Plan,” (see video) the specifics of which were further outlined in the Governor’s Budget proposal issued on January 8, 2021.  The Plan requires legislative approval, and thus is subject to potentially significant changes, but K-12 educational entities may wish to give early consideration (including talking to their unions) as to how the Plan might be implemented, in light of the very short timelines contained in the current draft of the Plan.

The Plan, as currently proposed, would allow schools to open for K-6 instruction when infection rates fall below 28 per 100,000 population per day (using a 7 day rolling average) — this is well in excess of the current requirement that schools can initially open only when infection rates drop to 7 per 100,000 population per day and remain there for two weeks in order to qualify for the Red (substantial) tier under the State’s Blueprint for a Safer Economy.

Under the Plan weekly asymptomatic testing would initially be required, though this would drop to asymptomatic testing every two weeks when infection rates dropped below 14 per 100,000 population per day.  Testing requirements would continue to drop as infection rates drop, with only symptomatic testing required when infection rates drop below 4 per 100,000 population per day (i.e. the Orange or Yellow tiers in the State Blueprint). (see https://www.youtube.com/watch?app=desktop&v=g22U92aS-FQ&feature=youtu.be ).  Thus, testing expense may drop significantly over the course of the semester as case rates decline.

The Plan provides for In-Person Instruction Grants, available on a per-pupil basis (including pupils who opt to continue remote instruction) for all county schools, school districts, and charter schools (with the exception of non-classroom based charters schools and independent study programs) that are open for in-person instruction by specified dates, beginning in mid-February 2021 for grades TK-2, and beginning in mid-March for grades 3-6.  Schools opening after the specified start dates would qualify for a proportionally lower base grant, though schools unable to open by the specified dates (i.e. because infection rates are at or above 28 per 100,000 population per day) would be eligible for the full grant amount if they open for in-person instruction once infection rates decline to the point where they are permitted to open.  Using this metric, and recognizing that current infection rates are in excess of 100 daily cases per 100,000 population, it seems that a significant number of schools might be eligible under the Plan to open later than mid-February, while receiving full funding.

The Governor and the California Department of Public Health (CDPH) maintain that in-person instruction is important to meet not only the core learning needs of students, but also their mental health and social-emotional needs, especially for younger students, students with disabilities, and those already disproportionately impacted by the pandemic.  The Plan’s Rationale rests on growing evidence that safety precautions can prevent spread of COVID-19 in schools, allowing schools to bring back TK-2 students and phase in other grade levels through the spring, as conditions allow. The Plan also provides a summary of evidence which indicates that younger children are at a lower risk of contracting and transmitting COVID-19, as long as core safety measures are in place.

The Plan, as currently drafted, is built on four pillars:

1. Funding: The Budget includes $2B one-time Prop. 98 General Fund available in February 2021 to augment resources for schools to offer in-person instruction. Schools that offer in-person instruction by February 16, 2021 for all TK-2^nd grades, and by March 15, 2021 for all 3^rd-6^th grade, will receive base grants of $450 per student, increasing to more than $700 per pupil for schools with high enrollment of low-income students, youth in foster care, and English language learners.

The Plan, as currently drafted, states that in-person instruction must be offered to qualify for the base grants. The Plan does not specify the length of time that in-person instruction must be offered in order to qualify. The Plan allows for distance learning to remain an option for parents and students who choose it and for those whose health status does not allow them to return to school in the near term.

As a condition of receiving grant funds, schools will be required to complete a COVID-19 School Safety Plan in compliance with CDPH and occupational health safety requirements, and will be required to adopt and implement a plan for COVID-19 surveillance testing for staff and students that aligns with state public health guidance.  This plan must also be shared with the associations and there must be a ratified agreement that that supports implementation of their COVID-19 School Safety Plan. The grant funds may be used for any purpose that supports in-person instruction, including:

a. Enhancing and expanding COVID-19 testing;

b. Purchasing personal protective equipment (PPE);

c. Improving ventilation and the safety of indoor or outdoor learning spaces;

d. Teacher or classified staff salaries for those providing and supporting in-person instruction; and

e. Social and mental health support services provided in conjunction with in-person instruction.

2. Safety & Mitigation:

a. Testing: Frequent testing must be provided for all school staff and students, including weekly testing in communities with high rates of transmission. PCR tests at 1/3 market rate available for schools from the new State-owned Valencia Branch Lab.

b. PPE: Masks will be required of all staff and students. The State recommends and will distribute surgical (not N95) masks to schools at no cost.

c. Contact Tracing: Schools will be on-boarded onto the School Portal for Outbreak Tracking (SPOT) where schools, health officials, and members of the State contact tracing workforce can better communicate and collaborate.

d. Vaccine: School staff will be included in phase 1b. See more about vaccination of school employees in our alert here.

3. Oversight & Assistance: A Safe Schools for All Team will provide technical support for schools to develop and implement their COVID-19 Safety Plans. The Governor stated that all schools must post their COVID-19 safety plans online and report key data to the State. Experts from public health, education and Cal/OSHA will monitor and respond to the data and provide assistance.

4. Transparency & Accountability: A State dashboard to be set up showing every school’s reopening status, level of available funding, and data on in-school transmissions. A hotline will be available for school staff and parents to report any concerns. The Governor indicated that the data and plan submitted to the State will be publicly available.

As we indicated in our recent Vaccination Guidance for Educational Employers Alert, implementing the Governor’s Safe Schools for All Plan requires some degree of bargaining with local unions.  The Educational Employment Relations Act (EERA) requires public employers to bargain over mandatory subjects of bargaining, as well as non-negotiable decisions which may have reasonably foreseeable effects on negotiable subjects. Public employers risk violating the EERA if they take unilateral action that would (i) change a matter within the scope of representation, or (ii) involve non-negotiable matters, yet affect negotiable subjects. Hours of employment, leaves, employee safety, and salary are among the mandatory subjects of bargaining that might be impacted by the Governor’s Safe Schools for All Plan. As a result, employers should anticipate, at the very least, a demand to bargain increasing in-person instruction and operation.

If you have any questions regarding this Alert, you can contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2021 Atkinson, Andelson, Loya, Ruud & Romo