School Law Review - April 2023

School Law Review

Recent Federal Changes Impacting Pregnant and Nursing Workers

Inanattempttocreatenewlegalprotectionsandremediesforindividualswhoare pregnantornursing,Congressrecentlypassedtwoacts,theProvidingUrgentMaternal ProtectionsforNursingMothersAct(PUMPAct)andthePregnantWorkersFairness Act(PWFA),whichwillexpandthenumberofnursingandpregnantworkersgranted protections,includingschoolemployees.

In 2010, the Break Time for Nursing Mothers Act was signed into law, which required employers to provide nursing mothers a reasonable break time in a private and shielded place to express breast milk for a minimum of one year following the child’s birth. However, these requirements applied only to employees not exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement.

On December 29, 2022, President Biden signed the PUMP Act into law, which expands the rights granted by the Break Time for Nursing Mothers Act to include exempt employees of covered employers. This change, which adds over nine million workers, will now grant all salaried employees, such as teachers, similar protections.

The PUMP Act, much like the Break Time for Nursing Mother Act, requires employers to provide (1) reasonable break time to express milk, and (2) a private location that is not a bathroom and that is shielded from view and free from intrusion. Additionally, the PUMP Act authorizes an aggrieved employee to bring a claim against an employer who violated the PUMP Act, as well as prohibits that employer from retaliation against the employee as a result of that claim. Furthermore, the PUMP Act has adopted all available remedies under the FLSA, such as reinstatement, promotion, payment of wages lost, and compensatory damages. The U.S. Department of Labor published a fact sheet that lays out additional information regarding the PUMP Act. For example, the fact sheet discusses how an employee may be compensated for break time to pump, whether that be through paid break time or being completely relieved from their duties. The DoL Fact Sheet can be found here, https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-breaktime-nursing-mothers.

Recent Federal Changes Impacting Pregnant and Nursing Workers

PREGNANT WORKERS FAIRNESS ACT

In addition to the PUMP Act, Congress passed the Pregnant Workers Fairness Act (PWFA), which will go into effect June 27, 2023. The Pregnancy Discrimination Act of Title VII, which is enforced by the Equal Employment Opportunity Commission (EEOC), prohibits employers from discrimination on the basis of pregnancy and requires an employer to treat pregnant employees in the same manner as other employees who are similar in their ability or inability to work. While this act does prevent discrimination against pregnant employees, it does not require an employer to comply with any accommodation requirements. This gap between the prohibited discrimination and lack of accommodation requirements has now been filled by the PWFA.

Under the PWFA, Congress has made it unlawful for an employer with 15 or more employees to:

● Require an employee to accept an accommodation without a discussion about the accommodation;

● Deny a job or other employment opportunities to a qualified employee or application based on the person’s needs for a reasonable accommodation;

● Require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;

● Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA; and

● Interfere with any individual’s rights under the PWFA.

These restrictions under the PWFA will protect employees and applicants of covered employers, which include schools, who have “known limitations related to pregnancy, childbirth, or related medical conditions.” In addition to these restrictions, the PWFA noted that an individual may still be considered a qualified employee if the inability to perform an essential function is for a temporary period, the essential function can be performed in the near future, and the inability to perform the function could be reasonably accommodated.

RECENT LITIGATION SURROUNDING PREGNANCY DISCRIMINATION

Congress’ actions come following recent litigation where the Equal Employment Opportunity Commission (EEOC) filed suit against a nursing and rehabilitation facility. The EEOC asserted that the facility had established policies requiring employees to inform the company when they were pregnant as well as obtain a note from their doctor releasing them to work without restrictions. The EEOC additionally alleged that the facility denied pregnant employees that had restrictions with reasonable accommodations and went so far as to terminate them, while other employees with similar restrictions were provided accommodations.

Recent Federal Changes Impacting Pregnant and Nursing Workers

Thesuit,whichwasbroughtinJuneof2021,cametoacloseApril12,2023witha decision findinginfavoroftheEEOC hedecisionorderedthefacilitytopay$400,000splitbetween 11employees,aswellasissuedadecreethatwouldprohibitthefacilityfromdiscriminationon thebasisofpregnancyinthefuture,includingdenyingpregnantemployee’smodificationsand arequirementthatpregnantemployeesobtainadoctor’snote.

Whatdoesthismeanforyourdistrict?TocomplywiththePUMPActandthePWFA,districts shouldupdatetheirreasonableaccommodationandnursingemployeebreakpoliciesto reflectthenewrequirements.Additionally,districtsshoulddesignateanadequatespace for employeestoexpressbreastmilkthatisincompliancewiththePUMPAct,meaningthe spacemustbe(1)reasonablebreaktimetoexpressmilk,and(2)aprivatelocationthatisnot abathroomandthatisshieldedfromviewandfreefromintrusion.

Fourth Round of Direct Certification with Medicaid States Selected

TheUnitedStatesDepartmentofAgriculture(USDA)recentlyannouncedthat14newstates, includingOhio,havebeenselectedtoparticipateintheDirectCertificationwithMedicaidDemonstration Projectsforthe2023-2024schoolyear.Withthe2023-2024addition,atotalof39statesarenow eligibletoparticipate ThedemonstrationofDirectCertificationwith MedicaidforFreeand Reduced-PriceMeals(DCM-F/PR)authorizesstatesandschooldistrictstouseinformation fromMedicaiddatatoidentifyeligiblestudentstoreceivefree orreducedlunches Theprogramallowsstudentstobecertifiedforfreeorreducedmeals withouthouseholdapplications Inthe2019-2020schoolyearmorethan1.2millionstudents werecertifiedforfreemeals,and240,000studentswerecertifiedforreduced-pricemeals.

TolearnmoreabouttheprogramvisittheUSDAwebsite.

What this means for your District: School districts will want to be on the watch for informationfromtheUSDAinhowtheMedicaidsystemwill“talk”totheUSDA’ssystemforreporting studentswhoareeligibleforfreeorreduced-pricemeals.

Career Tech Corner

CTC Options for Acquiring Sites for Instruction

As Career Technical Centers (CTC) offer ever-expanding curricula and training in more advanced and technical fields, there may be a need for new space for hands-on learning and training. Perhaps your district is interested in erecting a lab for manufacturing education, or agricultural space for education in farming technology.

Under the law, school districts are “bodies politic and corporate” “capable of…acquiring, holding, possessing, and disposing of real and personal property.” Just like any city, local, or exempted village school district, vocational districts can purchase and lease land for the erection of education facilities. CTCs may also purchase or lease existing buildings and, as needed, renovate such existing spaces for their purposes. Lease-purchase agreements are also permissible for this purpose. CTCs may also acquire ownership of real property by donation or an exchange agreement. (By law, CTCs have all the authority and powers as city school districts with the exception of certain matters specifically address in the Revised Code pertaining to Chapters 124 (civil service), 3317 (School Foundation Program), 3323 (special education), and 3331 (age and schooling certificates)). There are other means by which a CTC could acquire property that occur less frequently, are less desired, and are entirely context based. These are adverse possession and appropriation (condemnation).

There may be instances where a CTC desires to acquire property not to erect a building for use as classroom space but to facilitate the programming of the CTC. In some instances, this may involve students performing work that is within the scope of their particular program but that also contributes to a private venture.

The applicable statutes refer to a board of education using its powers to acquire property for its own purposes, i.e., for the

operations of the district in carrying out its educational mission. There is not any express authority in those statutes for a board to acquire property for non-school purposes or to effectuate a purely private development.

However, there are some attorney general opinions, addressing CTCs in particular, that have allowed a CTC to engage in a private venture so long as there is some connection to the curriculum. See 1976 Op. Atty. Gen. No. 76-065 (A CTC may construct and sell single-family residences on school land. Students erected the homes under supervision as part of the curriculum, and not for pay); 1971 Op. Atty. Gen. No. 71-068 (A school may engage and compete in private enterprise, even at a profit, so long as the program is reasonably necessary to the vocational education curriculum); 1971 Op. Atty. Gen. No. 71-026 (Use of school facilities for serving meals and banquets to community organizations is justified as part of the vocational education curriculum).

1981 Op. Atty. Gen. No. 81-093 opines that a CTC may, pursuant to R.C. 3313.90, enter into an agreement with a nonprofit corporation whereby students of the district would construct a house on property owned by the corporation with materials and equipment furnished at the expense of the corporation, provided that such an agreement is reasonably necessary to fulfill the requirements of the vocational education curriculum. Additionally, that opinion holds that a board of education of a CTC may, as part of a vocational education program, purchase land, construct residential dwellings thereon, and thereafter sell such realty.

What does this mean for your district?

Your board is vested with broad powers to acquire property using several different means. The options available should be carefully considered to ensure which is the best approach for any given project or plan.

Court of Appeals Holds that a Townships Email Lists are Not Public Records

Hicks v. Union Twp., 2023-Ohio-874

The Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble, Warren) recently ruled in a public records case that a township’s email and mail lists, used by the township for the publication of newsletters and other communications, were not public records because the lists did not “document the activities or operations of the office.”

The requester asked for the “the full email list used for township newsletters” and “the full mail list used for township newsletters.” After several exchanges between the requester and the township, during which the requester was repeatedly told that the lists were not public records and would not be produced, the requester filed suit, pro se.

The requester argued, in essence, that the township uses the lists to and keep citizens informed of the activities of the office. Thus, according to the requester, the lists document the functions and activities of the township.

The Court of Claims appointed a special master and the case was unsuccessfully referred to mediation.

The township administrator testified via affidavit that a third-party vendor facilitates the mailing of the newsletter and the mailing lists for the newsletter. The township also provides an opportunity for interested persons to subscribe and receive the newsletter electronically. On the township website, subscribers are asked to enter their names and email addresses to receive the newsletter. The township maintains the list, but it is used only for the administrative purpose of issuing the electronic newsletter.

The requester submitted an affidavit of a former township administrator, but it largely focused on the content and development of the newsletter over time. The affidavit confirmed how the lists were maintained. Based on the affidavit, the requester argued that the “requested information is essential to the ability of Requester to understand and form a critique of a specific function of the government, staffed and paid for with tax dollars.” The requester indicated

he desired to obtain the lists to “evaluate the conduct of the newsletter program.” For example, the requester indicated he wished to learn to whom the newsletter was being sent (residences and businesses, or only residences), if there were any citizens being omitted, if there was an overlap of individuals receiving the newsletter by mail and email, how “well-saturated” the email list was, and whether the emails included “valid or bot accounts.”

The Court of Appeals reasoned that while the lists did constitute “documents, devices or items” which are “kept” by the Township, the third prong of the analysis, (i.e., that the record document the “organization, functions, policies, decisions, procedures, operations, or other activities” of the public office) was not met. The Court looked to precedents which held that simply because an item is received and kept by a public office does not transform it into a record. Home addresses have been analyzed in other contexts, such as requests for personnel files. The Ohio Supreme Court has held that “at best, home addresses represent contact information used as a matter of administrative convenience,” and that they “reveal little or nothing about the employing agencies or their activities.”

Furthermore, the Court found that the recipients of the newsletters, (who could be anyone, not just citizens) were not part of the decision-making process surrounding the newsletter and they do not assist the township in the performance of its functions. The Court applied essentially the same analysis to the hard copy mailing list.

What this Means for Your District

Not every record in the possession of the school district is a public record. The document must meet all three parts of the test in order to be a public record. Careful analysis is always required however. It would not be wise to categorically deny a request for a distribution list, for example, without first considering the nature of the list, what it is used for, how the persons on the list are placed there and for what purpose.

Special Education Spotlight

U.S. Supreme Court Determines Parents Do Not Have to Exaust IDEA Administrative Remedies

On March 21, 2023, the U.S. Supreme Court unanimously determined that parents do not have to exhaust their IDEA administrative remedies if they seek only monetary damages under Section 504 or the ADA.

In this case (Perez v. Sturgis Public Schools “Sturgis”) the school district was alleged to have denied a qualified interpreter to a deaf student for 12 years and to have misled the parents and student into thinking the student would graduate on time, informing them only in the months prior to graduation that the student would not, in fact, be eligible for graduation. After filing and settling their due process claim with the school district, the student (who was over 18 at the time of filing) filed a federal lawsuit, alleging violations of Section 504 and the ADA, seeking compensatory damages for emotional distress and lost income resulting from the school district’s failures.

Before the U.S. Supreme Court, the student argued that he was not required to exhaust his IDEA administrative remedies because he was not seeking remedies that were available under the IDEA. The school district argued that the student was required to exhaust his IDEA administrative remedies because the student alleged a failure to provide a free and appropriate public education. The entire argument centered on the differences between remedy or relief sought. However, the U.S. Supreme Court did not find that there was any difference between remedy or relief, holding that “relief means remedy.” The Court expressly indicated that if Congress intended to distinguish the two terms, they should have done so.

As a result of this case, parents and students may avoid IDEA exhaustion remedies by filing directly with federal court demanding monetary damages.

Anadditionalnote,theCongressionalResearchServices,a researchinstituteworkingdirectlyformembersandcommittees oftheU.S Congress,hasprovidedaLegalSidebarformembersofCongressonthiscaseindicatingthatCongresshasa historyoflegislatinginthisareainresponsetoSupremeCourt decisionsandthisisanareawhereCongresscouldclarifyits intent.

WhatDoesThisMeanForYourDistrict?

Inthedailyoperationsofschooldistrictsservingstudents withdisabilities,theSturgisdecisionchangesnothingabout theexemplaryservicespublicschoolsprovideeverydayto studentswithdisabilities.TheexpectationfrommanyobserversisthattheSturgisdecisioncould,however, resultinhigher settlementdemandsforschooldistricts.Pleasereachouttoa memberofEnnisBritton’sSpecialEducationTeamformore informationonthiscase,orobtainarecordingofEnnisBritton’s caselawupdatediscussingthiscase.

Perez v. Sturgis Public Schools, 143 S. Ct. 859 (2023)

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