N.J.S.A. 18A:7F-9e(1) provides that if schools are closed for more than three consecutive school days as a result of a declared state of emergency, declared public health emergency, or a directive by the appropriate public health agency or officer to institute a public health-related closure, then public school employees covered by a collective negotiations agreement are entitled to continue to receive the benefits, compensation, and emoluments as provided in that collective negotiations agreement as if the school facilities had remained open.

N.J.S.A. 18A:7F-9e(2) provides that if schools are closed for more than three consecutive school days as a result of a declared state of emergency, declared public health emergency, or a directive by the appropriate public health agency or officer to institute a public health-related closure, then public school employees who are not covered by a collective negotiations agreement are entitled to continue to receive any benefits, compensation, and emoluments to which they would have been entitled as if the school facilities had remained opened.

In planning for summer programming, a school district may wish to consult with their legal counsel regarding language included in the collective negotiating agreement or other individual employment contract. A district should make a determination regarding paying stipends for extracurricular activities while schools are closed after careful consideration of its collective bargaining agreements and other individual employment contracts, and should include consultation with district legal counsel.

Please note that N.J.S.A. 18A:7F-9f specifically includes charter schools and renaissance school projects in the definition of “school districts” for the purposes of the provisions discussed in this guidance.

Pursuant to N.J.S.A. 18A:7F-9e(3), a school district must continue to make such payments to a contracted service provider when: 1) the school closure lasts more than three consecutive school days; and 2) the closure is a health-related closure that results from a declared state of emergency, declared public health emergency, or a directive by the appropriate health agency or officer. N.J.S.A. 18A:7F-9e(3) specifies that a contracted service provider must use these payments to meet payroll and fixed cost obligations. Districts should consult with their legal counsel if uncertain about whether a particular contract is included in the law.

The payments must be consistent with the terms of the contract in effect on the date of the closure. However, school districts are required to make reasonable efforts to renegotiate contracts subject to the law’s provisions. Because payments must be used to meet the payroll and fixed cost obligations of the contracted service provider, and the negotiations shall not include indirect costs such as fuel or tolls, these indirect items shall not be required by any renegotiated contract.

The law also authorizes school districts to direct a contracted service provider to provide services that may reasonably be provided and are within the general expertise or service provision of the original contract. For example, this may include a transportation contractor delivering meals to pick-up sites rather than providing the originally contracted student transportation services, or remote provision of services in place of in-person.

Districts and contracted service providers are reminded that the NJDOE has previously advised that for special education services and nonpublic services, home instruction/services shall be consistent with the student’s Individualized Education Program (IEP) or service plan to the most appropriate extent possible. Therefore, the renegotiation of contracts should focus specifically on how districts and service providers will work together to provide services to students.

Please note that addendums to transportation contracts resulting from the negotiations required by P.L. 2020, c. 27 may be forwarded to the county office for approval pursuant to N.J.A.C. 6A:27-9.14.

Similar to private contracted service providers, school districts should continue to provide payments on contracts entered into with other public entities such as Educational Services Commissions, County Special Services School Districts, and shared services partners that were in effect at the time of the health-related school closure. If the public entity is a direct service provider, it will use those payments to meet payroll and other fixed costs. If the public entity has contracted with a private provider, then the public entity will use the payments to fulfill those contracts. Similar to school districts, a public entity is required to make reasonable efforts to renegotiate contracts subject to the law’s provisions, and a public entity may direct a private service provider or provide services that may reasonably be provided and are within the general expertise or service provision of the original contract.

Pending legislation (A4132) proposes to amend P.L. 2020, c. 27 and was sent to the Governor’s desk on May 14, 2020. Districts should closely monitor ongoing legislation and NJDOE broadcasts for further developments in this area.

Questions regarding this guidance should be directed to the county offices of education, which will refer questions to the appropriate Department office for a response.