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COVID-19: Continuity of Learning for K-12 Students under Executive Order 2020-35

April 3, 2020

As anticipated, on April 2, 2020, Governor Whitmer issued Executive Order 2020-35 (the “Order”) regarding the provision of K-12 education in Michigan for the remainder of the 2019-20 school year. The 17-page order, in short, suspends all in-person instruction of K-12 public, non-public and boarding schools; closes all school buildings; suspends all K-12 sports and other in-person extracurricular activities; temporarily relaxes and waives various provisions of the Revised School Code and School Aid Act requirements and related regulations; and sets forth requirements for districts to include in a Continuity of Learning and COVID-19 Response Plan (a “Plan”).  A school district with an approved Plan is eligible to receive continued payments from the State School Aid Fund for the 2019-20 school year.  While the Executive Order does not expressly so state, a district shall forfeit continued payments if it fails to create an approved Plan. 

A summary of critical deadlines, basic Plan requirements, and other pertinent provisions within the Order is outlined below:

Deadlines

As promised in the Order, on April 3, 2020, the Michigan Department of Education (“MDE”) distributed a model template for a Plan, described below.  This model template was created in collaboration with the Michigan Association of Intermediate School Administrators and the Michigan Council of Charter School Authorizers. 

The Order requires that all intermediate districts and authorizing bodies be ready to review and approve, or reject Plans by no later than April 8, 2020.  A district’s Plan must be implemented by no later than April 28, 2020. Notably, the Order does not provide any deadline by which the Plan must be reviewed and approved or disapproved.  

Plan Requirements, Development & Implementation

Districts will need to move quickly to develop and seek approval of their plans from their intermediate school districts (for traditional school districts) or authorizing bodies (for public school academies) so Plans can be implemented by no later than April 28.  Plans may be created by an individual traditional school district, or jointly between districts via a cooperative agreement.  Districts may also contract with one or more providers to assist with implementation of their Plan. The model template for a Plan can be found here.  Districts and academies have a lot of flexibility in completing this template, provided their Plans include all of the elements outlined in Part II(B) of the Order, which in pertinent part, include the following: 

It is also important to note that the Order:

Collective Bargaining Considerations

The Order provides very few, but powerful provisions regarding its effect on any collective bargaining agreement currently in effect.  First, under Section II(B)(11) a Plan can only be approved  if the district shall “Continue to pay school employees while redeploying staff to provide meaningful work in the context of the Plan, subject to any applicable requirements of a collective bargaining agreement.”  Further, the Order states that all districts must implement the Order in a manner that is “consistent” with any collective bargaining agreement. 

Notably, the Order does not cite to, amend, or in any way relate to the Public Employment Relations Act (“PERA”), MCL 423.201 et seq. and therefore it should be considered as having full force and effect.  Accordingly, districts need to be mindful of all required, permissible, and impermissible subjects of bargaining under PERA. 

For more information about what the Order means for unionized school employers, please click here.

[1] “Alternative Modes of Instruction” allow for the continuation of learning when students are unable to participate in, or receive, in-person instruction, e.g., partnerships with other districts or intermediate districts or community colleges or institutions of higher education; use of online learning; telephone communications; email, virtual instruction, or instructional packets.  

[2] A “balanced calendar” means districts can reduce the traditional 12-week summer vacation and more evenly disperse time off for students throughout the year, so long as the 180-day requirement remains in effect.