The Department of Education’s Student Privacy Policy Office released additional guidance recently regarding the disclosure of information related to COVID-19 cases and the Family Educational Rights and Privacy Act (“FERPA”). Below is a summary of the updated guidance.

Disclosing the number of students who have COVID-19 without prior written consent:

A school can share with parents and students the number of students who have COVID-19, so long as it is provided in a non-identifiable way. Keep in mind when disclosing the number of students, the school should have a sufficient number of students who attend the school and other students at the school who are absent for other reasons. If not, it may be possible to identify the absent students with COVID-19.

A school can share the number of students who have COVID-19 to provide general health data to the public (including the media). Just like when sharing the number with parents and students, the school should ensure the disclosure does not provide information that identifies the student(s).

Identifying a specific student who has COVID-19:

A school can identify that an individual in the school has COVID-19, however the school cannot specifically identify the student. In rare circumstances, during a health or safety emergency, a school can determine it is appropriate to disclose identifiable information to parents or students about a student with COVID-19 if that information is necessary to protect their health. This information should be released in very limited circumstances after a school has conducted a case-by-case determination, taking into account the totality of the circumstances, including the risks presented to the health of students or other individuals, and the need for such individuals to have the information to take appropriate action. Schools are encouraged to consult with public health officials when making this determination.

 Identifying teachers or other school employees who have COVID-19:

FERPA only applies to students’ education records. It does not prohibit a school from telling parents, students, or the public that a specific employee of the school has COVID-19. It is important to be mindful there could be local restrictions on releasing the identity of an employee with COVID-19.  Additionally, the Americans with Disability Act (“ADA”) requires employers to keep confidential any medical information they learn about any employee.  The U.S. Equal Employment Opportunity Commission (“EEOC”)  allows an employer to disclose the name of an employee only to a public health agency when it learns the employee has COVID-19. Before releasing the identity of any employee, consult with public health officials.

At ARBH we continue to monitor this rapidly changing guidance and make updates as needed.  Information is subject to change as the pandemic continues.  For further information, please contact one of our attorneys directly.