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Including Emergency Protocols in District-Wide School Safety Plans

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4/28/21 N.Y. St. Reg. EDU-17-21-00009-EP

NEW YORK STATE REGISTER

VOLUME XLIII, ISSUE 17

April 28, 2021

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

I.D No. EDU-17-21-00009-EP

Filing No. 370

Filing Date. Apr. 13, 2021

Effective Date. Apr. 13, 2021

Including Emergency Protocols in District-Wide School Safety Plans

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of section 155.17(c) of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101, 207, 305, 2801-a; L. 2020, ch. 168 as amended by L. 2021, ch. 30

Finding of necessity for emergency rule:

Preservation of public health and general welfare.

Specific reasons underlying the finding of necessity:

On September 7, 2020 (Labor Day), Governor Cuomo signed into law Chapter 168 of the Laws of 2020 that requires public employers, including public school districts, to adopt a continuation of operations plan in the event that the Governor declares a public health emergency involving communicable disease. The legislation (S.8617-B / A.10832) amends subdivision 2 of section 2801-a of New York Education Law to require that District Safety Plans include protocols for responding to a declared public health emergency involving a communicable disease that are “substantially consistent” with the provisions of section 27-c of the Labor Law. A technical chapter amendment (S.01295 / A.009980) to the legislation became effective February 16, 2021 (Chapter 30 of the Laws of 2021). The proposed rule is necessary to conform the Commissioner’s regulations to Chapter 168 of the Laws of 2020, as amended by Chapter 30 of the Laws of 2021.

Since the Board of Regents meets at fixed intervals, the earliest the proposed rule can be presented for adoption, after expiration of the required 60-day public comment period provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5), would be the September 2021 Regents meeting. Further, pursuant to SAPA section 203(1), the earliest effective date of the proposed rule, if adopted at the September meeting, would be September 29, 2021, the date the Notice of Adoption would be published in the State Register. However, Chapter 168 of the Laws of 2020 (Chapter 168), as amended by Chapter 30 of the Laws of 2021 (Chapter 30) became effective September 7, 2020.

Therefore, emergency action is necessary at the April 2021 meeting for the preservation of the public health and the general welfare in order to immediately implement the requirements of Chapter 168, as amended by Chapter 30, which requires school districts to include protocols for responding to a declared state disaster emergency involving a communicable disease in their district-wide safety plans.

It is anticipated that the proposed rule will be presented to the Board of Regents for permanent adoption at the September 2021 Regents meeting, after publication of the proposed amendment in the State Register and expiration of the 60-day public comment period required under the State Administrative Procedure Act. Because the emergency regulation will expire before the September 2021 Regents meeting, it is anticipated that two additional emergency actions will be presented for adoption at the June and July Regents meetings.

Subject:

Including Emergency Protocols in District-Wide School Safety Plans.

Purpose:

To implement chapter 168 of the Laws of 2020, as amended by chapter 30 of the Laws of 2021.

Text of emergency/proposed rule:

Subdivision (c) of section 155.17 of the Regulations of the Commissioner of Education shall be amended to read as follows:

(c) District-wide school safety plans and building-level emergency response plans. District-wide school safety plans and building-level emergency response plans shall be designed to prevent or minimize the effects of violent incidents, declared state disaster emergency involving a communicable disease or local public health emergency declaration and other emergencies and to facilitate the coordination of schools and school districts with local and county resources in the event of such incidents or emergencies.

(1) District-wide school safety plans. A district-wide school safety plan shall be developed by the district-wide school safety team and shall include, but not be limited to:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . .

(v) . . .

(vi) . . .

(vii) . . .

(viii) . . .

(ix) . . .

(x) . . .

(xi) . . .

(xii) . . .

(xiii) . . .

(xiv) . . .

(xv) . . .

(xvi) . . .

(xvii) in the case of a school district, except in a school district in a city having more than one million inhabitants, a system for informing all educational agencies within such school district of a disaster; [and]

(xix) the designation of the superintendent, or superintendent's designee, as the district chief emergency officer whose duties shall include, but not be limited to:

(a) …

(b) …

(d) …

(e) …

(f) …

(g) …

(h) ensure the completion and yearly update of building-level emergency response plans by the dates designated by the commissioner[.] ; and

(xx) ensure the development of protocols for responding to a declared state disaster emergency involving a communicable disease that are substantially consistent with the provisions of section 27-c of the Labor Law.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire July 11, 2021.

Text of rule and any required statements and analyses may be obtained from:

Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: [email protected]

Data, views or arguments may be submitted to:

Kathleen DeCataldo, Assistant Commissioner, Office of Student Support Services, NYS Education Department, 89 Washington Avenue, Room 218-M-EB, Albany, NY 12234, (518) 473-2890, email: [email protected]

Public comment will be received until:

60 days after publication of this notice.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law § 101 (not subdivided) charges the Department with the general management and supervision of all public schools and all of the educational work of the state.

Education Law § 207 (not subdivided) grants general rule-making authority to the Regents to carry into effect State educational laws and policies.

Education Law §§ 305(1) and (2) provide Commissioner, as chief executive officer of the State's education system, with general supervision over all schools and institutions subject to the Education Law, or any statute relating to education, and responsibility for executing all educational policies of the Regents.

Education Law § 2801-a requires the board of education or trustees of every school district, board of cooperative educational services, county vocational education and extension board, and the chancellor of the city school district of the city of New York to adopt and amend a comprehensive district-wide school safety plan and building-level emergency response and management plan.

Chapter 168 of the Laws of 2020, as amended by Chapter 30 of the Laws of 2021, adds a new section 27-c to the labor law which requires public employers to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease which shall include identification of essential personnel, needed personal protective equipment, staggering work shifts and providing necessary technology for telecommuting; and amends Education Law § 2801-a requiring school district-wide safety plans to include protocols for responding to a declared public health emergency involving a communicable disease that are substantially consistent with the provisions of Labor Law § 27-c.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to implement the provisions of Chapter 168 of the Laws of 2020 (Chapter 168), as amended by Chapter 30 of the laws of 2021 (Chapter 30) by requiring school district-wide safety plans to include protocols for responding to a declared state disaster emergency involving a communicable disease that are substantially consistent with the provisions of section 27-c of the Labor Law.

3. NEEDS AND BENEFITS:

On September 7, 2020 (Labor Day), Governor Cuomo signed into law Chapter 168 of the Laws of 2020 that requires public employers, including public school districts, to adopt a continuation of operations plan in the event that the Governor declares a state disaster emergency involving a communicable disease. The legislation (S.8617-B / A.10832) amended subdivision 2 of section 2801-a of New York Education Law to require that District Safety Plans include protocols for responding to a declared state disaster emergency involving a communicable disease that are “substantially consistent” with the provisions of section 27-c of the Labor Law. A technical chapter amendment (S.01295 / A.009980) to the legislation became effective February 16, 2021 (Chapter 30 of the Laws of 2021).

As per section 27-c of the Labor Law, the operations plan must include, but is not limited to:

a) A list and description of the types of positions considered essential in the event of a State-ordered reduction of in-person workforce. For this purpose, essential is defined as required to be physically present at a work site to perform his or her job. Such designation may be changed at any time at the sole discretion of the employer.

b) A description of protocols the employer will follow in order for nonessential employees to telecommute including, but not limited to, facilitating or requesting the procurement, distribution, downloading, and installation of any needed technology, including software, data, and the transferring of office phone lines to work or personal cell phones as practicable or applicable to the workplace, and may include devices.

c) A description of how the employer will, to the extent possible, stagger work shifts of essential employees to reduce overcrowding on public transportation and at worksites.

d) Protocols the employer will implement to procure personal protective equipment (PPE), defined as equipment worn to minimize exposure to hazards, including gloves, masks, face shields, foot and eye protection, protective hearing devices, respirators, hard hats, and disposable gowns and aprons and, for essential employees, a quantity sufficient to provide PPE to each essential employee to meet his or her tasks and needs during any given work shift. A plan for storage of equipment and access to equipment must be included.

e) Protocols in the event an employee is exposed to a known case of the disease, exhibits symptoms of the disease, or tests positive for the disease to prevent the spread or contraction in the workplace. The protocols shall not violate any existing federal, state, or local law regarding sick leave or health information privacy and must include detailed actions to immediately and thoroughly disinfect the work area, common area surface and shared equipment. The protocols must also describe the employer policy on available leave in the event of the need of an employee to receive testing, treatment, isolation, or quarantine.

f) Protocols for documenting hours and work locations, including off-site visits, for essential employees. The protocol shall be designed only to aid in tracking of the disease and to identify exposed employees and contractors to facilitate the provision of any benefits which may be available.

g) Protocols for working with the employer’s locality to identify sites for emergency housing for essential employees to further contain the spread of the communicable disease to the extent applicable to the needs of the workplace.

h) Protocols for implementing any other requirements determined by the Department of Health such as contact tracing or testing, social distancing, hand hygiene and disinfectant, or mask wearing.

The employer must consider and respond to recommendations received from the recognized or certified representatives of the employer’s employees in writing, within a reasonable timeframe. A copy of the final version of the plan shall be published in a clear and conspicuous location, and in the employee handbook, and in a location accessible on either the employer’s website or on the internet accessible by employees. No employer shall take retaliatory action or otherwise discriminate against any employee for making suggestions or recommendations regarding the content of the plan. "Retaliatory action" is defined as the discharge, suspension, demotion, or discrimination against any employee, or other adverse employment action taken against an employee in the terms and conditions of employment.

Therefore, to implement the provisions of Chapter 168 of the Laws of 2020, as amended by Chapter 30 of the Laws of 2021, the Department proposes to amend section 155.17 of the Commissioner’s regulations to require that school district-wide safety plans include protocols for responding to a declared state disaster emergency involving a communicable disease that are substantially consistent with the provisions of section 27-c of the Labor Law.

4. COSTS:

a. Costs to State government: The amendments do not impose any costs on State government.

b. Costs to local government: The amendments do not impose any costs on local government beyond those imposed by statute.

c. Costs to private regulated parties: The amendments do not impose any costs on private regulated parties beyond those imposed by the statute.

d. Costs to regulating agencies for implementation and continued administration: There are no additional costs to the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to conform the Commissioner’s regulations to Chapter 168, as amended by Chapter 30, and does not impose any additional program, service, duty or responsibility upon any local government beyond those inherent in the statute.

6. PAPERWORK:

The proposed amendment is necessary to implement Chapter 168, as amended by Chapter 30, and does not impose any specific recordkeeping, reporting or other paperwork requirements beyond those inherent in the statute. Consistent with the statute, the proposed amendment requires that school district-wide safety plans must include protocols for responding to a declared state disaster emergency involving a communicable disease that are substantially consistent with the provisions of section 27-c of the Labor Law.

7. DUPLICATION:

The proposed amendments do not duplicate existing State or Federal requirements.

8. ALTERNATIVES:

The proposed amendment is necessary to implement Chapter 168, as amended by Chapter 30. Therefore, no alternatives were considered.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

The emergency rule will become effective April 13, 2021. It is anticipated that the proposed amendment will be presented to the Board of Regents for permanent adoption at its September 2021 meeting. If adopted at the September 2021 meeting, the proposed amendment will become effective as a permanent rule on September 29, 2021. It is anticipated that regulated parties will be able to comply with the proposed amendment by the effective date.

Regulatory Flexibility Analysis

(a) Small businesses:

The proposed amendment is necessary to implement Chapter 168 of the Laws of 2020, as amended by Chapter 30 of the Laws of 2021, and does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

1. EFFECT OF RULE:

The proposed amendment applies to each of the 695 public school districts in the State. The purposes of the proposed amendment is to implement the provisions of Chapter 168 of the Laws of 2020 (Chapter 168), as amended by Chapter 30 of the laws of 2021 (Chapter 30) which requires school district-wide safety plans to include protocols for responding to a declared state disaster emergency involving a communicable disease that are substantially consistent with the provisions of section 27-c of the Labor Law.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to timely implement Chapter 168, as amended by Chapter 30 and does not impose any additional compliance requirements beyond those inherent in the statute.

3. NEEDS AND BENEFITS:

On September 7, 2020 (Labor Day), Governor Cuomo signed into law Chapter 168 of the Laws of 2020 that requires public employers, including public school districts, to adopt a continuation of operations plan in the event that the Governor declares a state disaster emergency involving a communicable disease. The legislation (S.8617-B / A.10832) amended subdivision 2 of section 2801-a of New York Education Law to require that District Safety Plans include protocols for responding to a declared state disaster emergency involving a communicable disease that are “substantially consistent” with the provisions of section 27-c of the Labor Law. A technical chapter amendment (S.01295 / A.009980) to the legislation became effective February 16, 2021 (Chapter 30 of the Laws of 2021).

As per section 27-c of the Labor Law, the operations plan must include, but is not limited to:

c) A description of how the employer will, to the extent possible, stagger work shifts of essential employees to reduce overcrowding on public transportation and at worksites.

h) Protocols for implementing any other requirements determined by the Department of Health such as contact tracing or testing, social distancing, hand hygiene and disinfectant, or mask wearing.

4. PROFESSIONAL SERVICES:

The proposed rule does not impose any additional professional services requirements on local governments.

5. COMPLIANCE COSTS:

The proposed amendment is necessary to conform the Commissioner’s Regulations Chapter 168, as amended by Chapter 30 and does not impose any additional costs on the State, regulated parties, or the State Education Department, beyond those inherent in the statute.

6. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any additional costs or technological requirements on local governments.

7. MINIMIZING ADVERSE IMPACT:

The proposed amendment implements Chapter 168, as amended by Chapter 30 and applies to all school districts in the State. Accordingly, no alternatives were considered.

8. LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule have been solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed rule applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment is necessary to timely implement Chapter 168 of the Laws of 2020 (Chapter 168), as amended by Chapter 30 of the laws of 2021 (Chapter 30), and does not impose any specific recordkeeping, reporting or other paperwork requirements beyond those inherent in the statute. Consistent with the statute, the proposed amendment requires that school district-wide safety plans must include protocols for responding to a declared state disaster emergency involving a communicable disease that are substantially consistent with the provisions of section 27-c of the Labor Law.

3. COMPLIANCE COSTS:

The proposed amendment is necessary to conform to Chapter 168, as amended by Chapter 30, and does not impose any additional costs on the State, regulated parties, or the State Education Department, beyond those inherent in the statute.

4. MINIMIZING ADVERSE IMPACT:

Because the statutory requirement applies to all schools in the State, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.

5. RURAL AREA PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, from the chief school officers of the five big city school districts, including those in rural areas.

Job Impact Statement

The proposed rule is necessary to implement Chapter 168 of the Laws of 2020, and Chapter 30 of the Laws of 2021 which requires school district-wide safety plans to include protocols for responding to a declared state disaster emergency involving a communicable disease that are substantially consistent with the provisions of section 27-c of the Labor Law.

Because it is evident from the nature of the proposed rule that it will have no impact on the number of jobs or employment opportunities in New York State, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

End of Document