Higher Education Law Report

Reopening Higher Education

June 22, 2020

On Saturday, June 20, the state released Interim Guidance on Reopening and Operating Higher Education Campuses. As with prior industry guidance, institutions of higher education (IHEs) will need to adopt a Safety Plan that meets state guidance. The Interim Guidance outlines the following considerations that should be used in developing a Safety Plan for campuses.

Reopening

Capacity. IHEs should consider the phasing and quantity of students, faculty and staff who are being reintroduced to campus. Capacity issues include how to monitor social distancing, the availability of testing, isolation and quarantine capacity for those infected or exposed, local medical capacity and safe transportation of infected persons. Campus spaces should be reconfigured as necessary to highlight social distancing, include physical barriers, limit the number of people in small spaces (e.g., elevators) and otherwise consider the safe capacity and reduced density of all campus spaces.

PPE. As with other industries, if faculty and staff are required to wear face coverings at times when social distancing is not possible, face coverings must be provided by the institution. The Interim Guidance does not require that face coverings be provided to students, although a prudent Safety Plan will require face coverings for students in certain circumstances (e.g., in elevators, in common areas, when standing in line in cafeterias, food kiosks or bookstore, etc.). Students, therefore, will need to have face coverings to meet these Safety Plan requirements. IHEs should inform students that face coverings will be needed and whether and how they will be available on campus.

Testing. Special attention should be given to testing those students who have travelled internationally or from long distances to get to campus, with a particular focus on those coming from areas with widespread transmission. IHEs should consider in their initial testing plans the possible quarantine of certain groups of students coming to campus that cannot be tested. The Interim Guidance states that it is a best practice to retest individuals arriving from other states and countries between 7 to 14 days after arrival, or upon development of symptoms.

Residential Living. The Safety Plan for residence hall living should consider capacity limits, enhanced cleaning and disinfection, appropriate social distancing, potentially limiting access to residence halls by non-residents and special housing considerations for immunocompromised students.

Vulnerable Populations. The Interim Guidance requires that IHEs consider vulnerable student populations who may not feel comfortable returning to campus and provide options for them to safely participate in educational activities.

Other guidance. IHEs should consider how classes and shared spaces may have to be adapted to ensure social distancing. The Interim Guidance recommends the institution of policies regarding extracurricular programs (e.g., clubs, social events, etc.) but provides no specifics about what the policies should contain.

Monitoring

Testing. The Interim Guidance implicitly acknowledges that regular testing of all students may not be possible. At a minimum, IHEs should identify who is responsible for administering tests, how test results will be communicated and plans to monitor health without testing. Schools should develop protocols around testing for cause (e.g., symptomatic individuals, close contact with infected individual, international travel, etc.).

Early Warning Signs. IHEs must define metrics that will serve as early warning signs that positive cases may be increasing beyond an acceptable level and define the methods to be used to monitor against such metrics.

Screening. Plans must be developed for regular health screening for employees, students and visitors which checks for the common signs of COVID-19. The Interim Guidance specifically acknowledges that students do not need to be screened daily (though employees and visitors should be).

Tracing. IHEs must work with state and local health departments to assist with contact tracing when a member of the IHE’s community has tested positive for COVID-19.

Containment

Isolation. The Safety Plan should identify how an IHE will isolate symptomatic individuals, including both residential students and those living off campus. The Safety Plan must specifically identify the location that will be used for isolation and the support system that will be in place for these students (e.g., food, medicine, psychosocial, academic and other support).

Quarantine. The Safety Plan should identify how an IHE will quarantine exposed individuals, both residential and nonresidential, and the support system that will be in place for these students.

Other guidance. Isolation and quarantine space should have private baths, to the extent possible. The Safety Plan must include how medical care will be provided for sick students, enhanced protocols for hygiene, cleaning and disinfecting exposed areas and how all containment protocols will be communicated to the IHE’s community.

Shutdown

Operational Activity. The Safety Plan should include contingency plans for how the institution’s operations will be scaled back or shutdown if necessary.

Move-out. The Safety Plan should include contingency plans for how students would safely depart campus, if necessary, including how arrangements for students who may not be able to depart campus quickly will be handled.

Communication. A comprehensive plan should be developed to communicate throughout any shutdown or scale back process.

These special considerations for IHEs should be incorporated into a Safety Plan that follows the same template laid out for other industries (organized by People, Places and Processes) and requires that IHEs (other than SUNY and CUNY institutions) must submit their Safety Plan with a required affirmation to the state. Plans should reflect engagement with campus stakeholders, including faculty, staff and students, and where appropriate, unions, alumni/ae and/or community-based groups. The Interim Guidance contains the template and links for reporting. A separate submission process will be required for SUNY and CUNY.

The Interim Guidance for Higher Education adds some new detail to the state guidance that has been released for other industries. These include:

For residence hall bathroom areas, schools should consider physical barriers between showers, toilets and sinks if six feet separation is not feasible. Schools should limit the storage of personal items within communal bathrooms.
Any time a student comes within six feet of another individual, the student should be prepared to don a face covering, but physical distancing among roommates is not required. Students who share the same dormitory room are considered members of the same household.
IHEs should determine which on-campus facilities should be closed to the public and whether to offer limited hours and how to control and limit visitors to the extent possible.
Since the campus footprint is so much bigger than premises of businesses in other industries, attention should be given to the more frequent cleaning and disinfecting of restrooms, hand cleaning and sanitizing stations throughout campus, how to appropriately clean and disinfect frequently touched surfaces and ensure that hand hygiene stations and/or disinfecting wipes are available and located close to high-touch areas.

The Interim Guidance references other guidance developed by the State for other industries for application, where appropriate, within the IHE. These include:

Remember, all institutions of higher education who are planning to reopen need to develop a Safety Plan that includes the minimum requirements outlined in the Interim Guidance. The attorneys at Bond, Schoeneck and King can help you develop a reopening plan. Our attorneys have already worked with clients on the development and submission of plans to the state and regional Empire State Development directors. In addition to the Higher Education practice, we have also formed a new practice, COVID-19 Recovery for Business to help clients reopen and recover.

Overview