Questions and Answers: Clearing Up Common Misconceptions for Independent Schools | Venable LLP

Some questions frequently arise in independent schools. With the following tips in mind, independent schools may consider revising (or revising) their policies and practices for the upcoming school year.

Question: When must independent schools provide notice of FMLA eligibility?

Answer: Independent schools must provide an FMLA Notice of Eligibility whenever the school learns that an employee’s furlough Strength Be eligible for an FMLA qualifying reason.

One thing that is often overlooked when managing employee leave is the requirement to provide employees with notice as to whether they are eligible to take leave under the Family and Medical Leave Act (FMLA). The FMLA imposes several notice requirements on independent schools. Firstschools must provide written notice of an employee’s eligibility to take a job-protected leave for reasons covered by the FMLA. Secondschools must provide notice of employee rights and responsibilities under the FMLA. ThirdOnce the school has enough information to determine if the FMLA applies, the school must provide the employee with a notice designating their leave as an FMLA job-protected leave.

Under the FMLA, independent schools must provide notice of eligibility to an employee the first time the employee takes a leave of absence for an FMLA-eligible reason during the twelve-month leave year designated by the FMLA. ‘school. Notice of eligibility must be provided:

  • within five working days of the initial leave request; Where
  • when the school first learns that an employee’s leave may be for an FMLA qualifying reason.

The notice of eligibility may be oral or written, must advise the employee of their eligibility status, and, if it has been determined that the employee is not eligible for FMLA leave, state at least one reason for which. The eligibility notice must also be accompanied by a notice outlining the employee’s rights and responsibilities under the FMLA. If applicable, schools may also attach to the notice of eligibility a medical certificate form that the employee must complete to provide additional information about the medical condition that requires the employee to take time off.

The US Department of Labor released examples of FMLA formsincluding Notice of Eligibility, Notice of Rights and Responsibilities and Medical Certification Form, on its website.

Schools that do not provide required FMLA notices may become liable for interference with, restriction of, or denial of an employee’s FMLA rights.

To avoid a possible claim of FMLA interference, independent schools should wire their leave management procedures to ensure that the FMLA Notice of Eligibility, Notice of Rights and Responsibilities, and Medical Certification Form (if applicable) are provided whenever an employee notifies the school of a need for leave that may be covered by the FMLA.

Question: Are independent schools covered by HIPAA?

Answer: Independent schools are generally not HIPAA covered entities.

It’s a common refrain heard among school nurses and counselors: medical and/or mental health information in the school’s possession about its students is covered by HIPAA and is protected from disclosure. Or, in the case of a more recent example, employees’ COVID-19 status is protected by HIPAA. But what is HIPAA anyway, and does it really apply to schools?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that requires the creation of national standards to protect sensitive patient health information. HIPAA rules apply to “covered entities,” which are limited to healthcare providers that electronically transmit health information as part of certain transactions; health plans, including employer-provided group health plans that provide or pay for medical care; and healthcare clearinghouses that convert healthcare information from a standard HIPAA format to a non-standard format, or vice versa. Most HIPAA rules also apply to “business associates,” which include contractors or suppliers of a covered entity who use or disclose individually identifiable health information in the course of providing services to the covered entity.

Notably, most employers are not considered covered entities. Maintaining records containing employee health information, such as documentation regarding an employee’s need for sick leave, does not make an employer a covered entity. Offering health insurance or any other type of group health plan does not make an employer a covered entity. Employers are considered separate legal entities from the group health plans they offer. The plan is a covered entity, but the employer is not.

Although HIPAA generally does not apply to independent schools, the Americans with Disabilities Act and other general privacy laws protect medical information (diagnosis, treatment, accommodation). Under these laws, any medical information collected must be kept confidential.

Question: Do independent schools have to comply with FERPA?

Answer: Independent schools are not entities covered by FERPA.

The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. FERPA has two primary purposes: 1) it gives parents or eligible students more control over their educational records, and 2) it prohibits educational institutions from disclosing “personally identifiable information in educational records” without consent. writing from an eligible student or, if the student is a minor, the student’s parents.

FERPA applies to everyone public K-12 and post-secondary schools. FERPA applies only to nonpublic schools that receive federal funds provided to the school “by grant, cooperative, agreement, construction, subgrant, or subcontract” under an applicable U.S. Department program. education.

To trigger FERPA, independent schools must actually receive direct funding from a program run by the U.S. Department of Education. FERPA is not triggered if a school or its students receive materials or benefits under a U.S. Department of Education program. For example, the E-rate program provides discounted Internet services to schools, but does not actually distribute funds to schools. Therefore, participation in the E-rate program does not trigger FERPA. Receiving material “on loan” from another federal program also does not trigger FERPA coverage.

Although many independent schools are not covered by FERPA, they must comply with other laws protecting the confidentiality of student records. Most states have common law statutes or rules that generally protect individuals’ right to privacy, which can be interpreted as prohibiting schools from disclosing student records or other information to others. than the student or his or her legal guardians.

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