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Questions And Answers: Clearing Up Common Misconceptions For Independent Schools – Privacy Protection

Certain questions frequently arise in independent schools. With
the following guidance in mind, independent schools may consider
visiting (or revisiting) their policies and practices for the
upcoming school year.

Question: When Do Independent Schools Need to Provide an FMLA
Notice of Eligibility?

Answer: Independent Schools Must Provide an FMLA Notice of
Eligibility Whenever the School Learns That an Employee’s Leave
Might Be Eligible for an FMLA-Qualifying Reason.

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

Under the FMLA, independent schools must provide a notice of
eligibility to an employee the first time the employee takes leave
for an FMLA-qualifying reason in the school’s designated
twelve-month leave year. The eligibility notice must be

  • within five business days of the initial request for leave;

  • when the school first acquires knowledge that an employee’s
    leave may be for an FMLA-qualifying reason.

The eligibility notice may be either oral or in writing, must
inform the employee of their eligibility status, and, if the
employee has been determined to be ineligible for FMLA leave, state
at least one reason why. The eligibility notice must also be
accompanied by a notice outlining the employee’s rights and
responsibilities under the FMLA. Where appropriate, schools may
also include with the eligibility notice a medical certification
form for the employee to complete, to provide additional
information about the medical condition causing the employee to
require leave.

The U.S. Department of Labor has published sample FMLA forms, including the Eligibility
Notice, the Notice of Rights and Responsibilities, and the Medical
Certification form, on its website.

Schools that fail to provide the requisite FMLA notices may
become liable for interference with, restraint of, or denial of an
employee’s FMLA rights.

To avoid a potential FMLA interference claim, independent
schools should hardwire their leave management procedures to ensure
that the FMLA Eligibility Notice, 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 could be covered under the FMLA.

Question: Are Independent Schools Covered by HIPAA?

Answer: Independent Schools Are Generally Not Covered Entities
Under HIPAA.

It is a frequent refrain heard among school nurses and
counselors: medical and/or mental health information in the
school’s possession concerning 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 under HIPAA.
But what is HIPAA anyway, and does it actually apply to

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’s rules apply to “Covered Entities,” which are
limited to healthcare providers that electronically transmit health
information in connection with certain transactions; health plans,
including employer-provided group health plans that provide for or
pay for medical care; and healthcare clearinghouses that convert
health information from a standard HIPAA format to a nonstandard
format, or vice versa. Most of HIPAA’s rules also apply to
“Business Associates,” which encompass a Covered
Entity’s contractors or vendors that use or disclose
individually identifiable health information in the course of
providing services to the Covered Entity.

Notably, most employers are not considered to be Covered
Entities. Maintaining records with employee health information,
such as documentation regarding an employee’s need for medical
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 to be legal
entities separate from the group health plans they offer. The plan
is a Covered Entity, but the employer is not.

Even though HIPAA does not generally apply to independent
schools, the Americans with Disabilities Act and other general
privacy laws protect medical information (diagnosis, treatment,
accommodations). Under these laws, any medical information gathered
must be kept private.

Question: Do Independent Schools Need to Comply with

Answer: Independent Schools are Not Covered Entities under

The Family Educational Rights and Privacy Act (FERPA) is a
federal law that protects the privacy of student education records.
FERPA serves 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 education records” without the
written consent of an eligible student or, if the student is a
minor, the student’s parents.

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

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. Nor does receipt of materials “on loan”
from another federal program trigger FERPA coverage.

Although many independent schools are not covered by FERPA, they
must comply with other laws protecting the privacy of student
records. Most states have statutes or common law rules that
generally protect individuals’ right to privacy, which may be
construed to prohibit schools from disclosing records or other
information pertaining to students to individuals other than the
student or their legal guardians.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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