Although Illinois schools and joint agreements have been closed for educational purposes since March 17, 2020, students and employees may have been exposed to the novel coronavirus, or contracted COVID-19, through school-based interactions. This novel coronavirus is thought to have an incubation period of up to 14 days. Therefore, any school community member who has developed symptoms of, or tested positive for, COVID-19 since schools closed on March 17 may have been infected prior to the statewide school closures and, consequently, exposed other students and staff to the virus. Moreover, many school employees may have reported to work in-person since schools closed to facilitate distance learning or to perform essential functions.
If a school district or joint agreement learns that students or staff have developed symptoms related to, or tested positive for, COVID-19 since March 17, they should consider notifying their school community about their possible exposure to the virus. The Centers for Disease Control and Prevention (“CDC”) and the U.S. Department of Education (“U.S. DOE”) have issued guidance to employers and schools regarding how school communities may be notified about a possible exposure to COVID-19 without violating applicable privacy laws.
If an employee has tested positive for COVID-19, the CDC recommends that the employer inform fellow employees about their possible exposure to the virus in the workplace. This notification should also be sent to students and parents. The CDC warns, however, that employers are required to maintain confidentiality as required by the Americans with Disabilities Act. Therefore, any notice that is sent to, students, and parents about a possible exposure should not reveal the infected staff member’s name, or other information which could be used to identify him or her. A similar notice may also be sent if an employee has developed symptoms of COVID-19, but not yet tested positive. Once again, this notice should not identify the employee.
Similarly, the U.S. DOE recommends that educational institutions, including school districts and joint agreements, notify the school community if a student developed symptoms or tested positive for COVID-19 within a time frame that creates a possibility that he or she may have exposed others while attending school. To avoid violating the Family Educational Rights and Privacy Act (“FERPA”), the DOE cautions that such notification should not include any personally identifiable information by which the student may reasonably be identified.
There may be instances when a school district or joint agreement determines that a subset of staff or students had an increased risk of exposure to an infected individual and requires a more-detailed notification in order to take appropriate protective action. If a district or joint agreement makes this determination, it should contact its attorney to review how such notification should be presented, and to prevent any privacy violations.
If you have any questions, please do not hesitate to contact one of our attorneys. We will provide updated and additional guidance as it becomes available.