2020 General Assembly Special Session Update
Opening of Session

The Virginia General Assembly convened in Special Session on Tuesday, August 18th.  The Governor called the Special Session primarily to adjust the 2021-2022 Biennial Budget to reflect a revenue reforecast necessitated by the COVID-19 pandemic.  In addition to budget matters, the General Assembly is scheduled to take up other policy matters related to COVID-19, but also to criminal and social justice reform.  In person meetings of the Special Session are being conducted outside of the Capitol grounds to allow for social distancing, and indications are that all committee meetings will be held virtually.

Earlier in the day, the Governor presented his proposed amendments to the Biennial Budget for the General Assembly’s consideration.  He indicated that, based on newly updated revenue forecasts, the Commonwealth faces an approximately $2.7B revenue shortfall over the biennium.  To reflect that shortfall, he did not propose to reinstate any of the education funding items that had already been “unallotted” in the current year budget (such as funding for salary increases, for school counselors, etc.).  The Governor expressed hope that the state’s revenue picture would improve by December, so he will reevaluate unallottments as he develops his 2021 Session budget amendments.  The one K-12 education area where the Governor did propose allocating additional funding was for improvements to broadband access statewide.

Education-Related Legislation

The following is a summary of the K-12 education legislation that had been proposed as of the evening of August 18^th.  Additional bills may follow, and note that policy matters may be addressed directly in budget language rather than via stand-alone legislation. 

A significant number of bills below are designated as “emergency” legislation.  Emergency legislation requires a 4/5 majority for passage and if passed would go into effect immediately upon the Governor’s signature.  It is our current understanding that all other legislation passed during Special Session would go into effect January 1, 2021, but note that may be subject to change depending on ongoing negotiations on the Session’s procedural resolutions and on the ultimate length of the Special Session.

Education Funding – Average Daily Membership

SB 5069 (Ruff) would provide that in the event that a declared state of emergency causes a disruption in the provision of in-person instruction for students that affects the calculation of average daily membership in a local school division as of March 31 in any school year, such membership shall consist of the greater of the average daily membership as of March 31 in the affected school year and the average daily membership as of March 31 in the immediately preceding school year.

Posting of Virus Mitigation Plans

SB 5083 (McClellan & Hashmi, emergency) would require each school board to post in a publicly accessible and conspicuous location on its website the plan outlining its strategies for mitigating the spread and public health risk of the COVID-19 virus, consistent with the Centers for Disease Control and Prevention and Virginia Department of Health mitigation recommendations, that the school board is required to submit to the Department of Education before reopening schools in accordance with Phase II and III guidelines pursuant to the June 8, 2020, order of the State Health Commissioner.

Outbreak Reporting

HB 5048 (Sickles) and SB 5081 (Barker) would require the Department of Health to make information about outbreaks of communicable diseases of public health threat at any medical care facility, residential or day program, service or facility licensed or operated by any agency of the Commonwealth, school, or summer camp currently required to report an outbreak of a communicable disease to the Department available to the public on a website maintained by the Department. Such information shall include the name of the place at which the outbreak has occurred and the number of confirmed cases of and deaths resulting from such communicable disease reported by each such place. SB 5064 (Lewis) would require employers to report for each worksite with 30 or more employees, or for any multi-employer worksite with 30 or more combined employees, to the local health department when the worksite has had five or more confirmed cases of the COVID-19 virus. The employer is required to make such report within 24 hours of becoming aware of such cases. The bill requires the State Department of Health to compile such reports and to make a weekly report available to the public with the compiled information. SB 5090 (Dunnavant, emergency) would require that upon the declaration of a public health emergency related to a communicable disease, the Commissioner of Health weekly make available to the public information about confirmed cases of the communicable disease among the total population of the Commonwealth and separate information about total confirmed cases of the communicable disease among the general population of the Commonwealth displayed in comparison to total confirmed cases of the communicable disease among persons living in confined spaces within the Commonwealth. The bill defines "confined spaces" as nursing homes, jails and prisons, and group homes. The bill also requires the Commissioner to publish confirmed cases of communicable disease by age group in increments of 10 years. The bill directs the Commissioner to develop and make available to the public on a website maintained by the Department of Health COVID-19 pandemic progress benchmarks that include progress benchmarks for percent positivity rates, percent ventilator utilization, percent intensive care unit utilization by COVID-19 patients, and other variables as deemed appropriate.

Rapid Diagnostic Testing

SB 5095 (Dunnavant, emergency) would require that when the Commissioner of Health determines that a communicable disease of public health significance exists in the Commonwealth, he shall ensure that any available rapid diagnostic testing indicating the existence of such communicable disease is readily available to all essential workers in the Commonwealth. Priority for access to such testing shall go to (i) health care providers, (ii) law-enforcement officers, (iii) emergency medical services personnel and emergency medical services providers, (iv) patients in nursing homes who are determined by the nursing home to be high-risk patients, (v) public and private elementary and secondary schools in the Commonwealth, and (vi) public institutions of higher education and private institutions of higher education in the Commonwealth.

School Nurses

SB 5004 (Kiggans) would require each local school board to employ at least one full-time equivalent school nurse position in each elementary school, middle school, and high school in the local school division.  NOTE that in the Local Government Impact statement attached to the legislation, Fairfax County estimated an additional net cost of $11.1 M to comply with this proposed requirement.

Paid Leave

HB 5078 (Coyner) would require each school board to provide to each teacher or other school board employee who is employed in a public elementary or secondary school in the local school division up to 14 days of paid leave, in addition to any other paid leave to which such individual is otherwise entitled, that may be used in the event that the employee (i) contracts COVID-19, (ii) is required to self-quarantine while awaiting the results of diagnostic testing for an active infection with COVID-19, or (iii) is required to provide care for a family member who contracts COVID-19.  SB 5094 (Dunnavant, emergency) would require each school board to provide to each teacher in the local school division up to 14 days of paid leave, in addition to any other paid leave to which such individual is otherwise entitled, that may be used in the event that the teacher (i) has been exposed to the COVID-19 virus and is required to self-quarantine, (ii) contracts COVID-19, or (iii) is required to provide care for a family member who contracts COVID-19.  SB 5076 (Favola) would more generally require public and private employers to provide eligible employees paid sick time that can be used during a pandemic. The bill would have a delayed effective date of January 1, 2021.

Civil Claims Immunity

A number of bills would provide immunity from civil claims related to the transmission of or exposure to the COVID-19 virus, including HB 5019  (Runion, emergency); HB 5040 (O’Quinn, emergency) HB 5074 (Sullivan, emergency),  SB 5067 (Saslaw, emergency) SB 5098 (Vogel, emergency) SB 5099 (Vogel, emergency)

Workers Compensation

The following bills would establish a presumption that COVID-19 causing the death or disability of specified employees is an occupational disease compensable under the Workers’ Compensation Act.  Most of the bills include a clause that would make the provisions of the bill effective retroactive to January 1, 2020.  HB 5028 (Jones), SB 5022 (Kiggans), SB 5066 (Saslaw), SB 5097 (Vogel),  SB 5104 (Deeds).

Vouchers

HB 5008 (Cole, ML, emergency); HB 5011 (Webert, emergency) HB 5056 (Freitas, emergency) SB 5020 (Chase) would all create vouchers to provide state funding for use by individual students for private or home instruction who choose to withdraw from public education in the event that their local school division does not provide a full time, in person educational option for enrolled students during a public health emergency.

In Person Instruction, Student Home Internet Access

HB 5009 (Cole, ML, emergency) would require each school board to provide in-person instruction to any student whose primary residence is not capable of receiving Internet access at speeds greater than 10 MBps download speed and one MBps upload speed. The bill would sunset upon the expiration of the state of emergency declared by the Governor in response to the COVID-19 pandemic in the Commonwealth.  SB 5021 (Chase, emergency) would provide that if a school board requires students to engage in virtual learning for any reason, whether full time or part time, and a computer and Internet service to connect to the curriculum is required, then the school board must provide appropriate technology devices to every student enrolled in the school system so they may access the learning platform. Additionally, the bill would require school boards to provide adequate Internet service to a student's household at no cost if a student's family income is below 125 percent of the federal poverty guidelines.

Student Attendance

SB 5100 (Dunnavant) would excuse from school attendance children diagnosed with COVID-19 or children with a household member diagnosed with COVID-19 while the child or household member is suffering from COVID-19.

Dual Enrollment, Virtual Virginia

SB 5093 (Dunnavant, emergency) would require the Department of Education to make community college dual enrollment courses for students in grades 11 and 12 available through the Virtual Virginia program. The bill would direct the Department of Education to prioritize the provision of community college dual enrollment courses that are included in the Passport Program, the Uniform Certificate of General Studies Program, and courses that lead to workforce credentials.

Student Growth Measures

SB 5091 (Dunnavant, emergency) would direct the Department of Education to create or obtain an individualized student growth measurement system that evaluates, tracks, and analyzes student grade-level proficiency and progress for use in public schools during the COVID-19 pandemic.

Waiver of Safety Drills and Required Health Screenings

SB 5068 (Peake, emergency) would permit any school board to waive any mandatory student safety drill and any mandatory student health screening until such time as the General Assembly reconsiders such waivers during the 2021 regular session of the General Assembly.

 State Holiday - Juneteenth

HB 5052 (Bagby) and SB 5031 (Locke) would recognize the nineteenth day of June of each year, also known as Juneteenth, as a legal holiday in the Commonwealth to commemorate the announcement of the abolition of slavery in Texas, the last of the former Confederate States of America to abolish slavery, and to recognize the significant roles and many contributions of African Americans to the Commonwealth and the nation.

Unemployment Compensation

HB 5054 (Subramanyam) would provide that under specific conditions related to COVID-19 work will not be deemed suitable and benefits will not be denied to any otherwise eligible individual for refusing to accept new work (i) if the individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and has been advised by a health care professional not to attend work; (ii) if a member of the individual's household has been diagnosed with COVID-19 or the individual is providing care for a family member or a member of his household with COVID-19; (iii) if during the COVID-19 pandemic the individual is an elevated risk of severe illness from the COVID-19 virus; (iv) if the individual is the primary caregiver for a child or other individual in his household who is unable to attend school or another facility that is closed as a direct result of the COVID-19 pandemic and the individual requires the school or facility in order to work and is unable to find a reasonable alternative; or (v) if the individual has a reasonable belief that his workplace is not in compliance with the Department of Labor and Industry's standards for the prevention of COVID-19.   HB 5087 (Tran, emergency) would repeal two sunset provisions from legislation enacted during the 2020 Regular Session of the General Assembly that, among other things, established a short-time compensation program that provides employers with the option of reducing the hours worked by employees while permitting the employees whose hours are reduced to receive partial compensation for lost wages. The bill also would extend the date by which the Virginia Employment Commission is required to establish and implement such short-time compensation program from January 1, 2021 to January 1, 2022.

School Resource Officer Training Requirements

HB 5061 (Kory, emergency) would require the compulsory minimum training standards for school security officers and school resource officers to include identifying and working with students with intellectual and physical disabilities, including exercising the appropriate level of caution and understanding during interactions with such students and employing condition-appropriate de-escalation techniques with such students, when necessary.

Immunizations

HB 5070 (LaRock) would eliminate the authority of the Board of Health or Commissioner of Health to require, during an epidemic of a disease of public health importance for which a vaccine exists, that a person receive such vaccine despite the person's objection to the vaccine on the grounds that administration of such immunizing agents conflicts with his religious tenets or practices. HB 5016 (Cole, ML) would eliminate the authority of the Commissioner of Health to require immunization of individuals who object to such administration on religious grounds more generally. HB 5082 (LaRock) would provide that no vaccine shall be added to the list of required vaccines if (i) the vaccine is derived from human fetal tissue, (ii) the vaccine modifies the ribonucleic acid (RNA) or deoxyribonucleic acid (DNA) of the person to whom it is administered, or (iii) development of the vaccine did not include preclinical testing of on laboratory animals prior to clinical trials involving human testing. The bill would also require the Department of Health to shall make data and information about the safety and efficacy of each vaccine required pursuant to this section and regulations of the Board, including data and information about any risk of harm associated with administration of the vaccine, available to the public on a website maintained by the Department. Such data and information would be required to be presented in a manner that is easily understandable and accessible to all individuals.

Collective Bargaining

HB 5021 (Davis) would prohibit any local ordinance or resolution granting or permitting collective bargaining from permitting consideration during collective bargaining negotiations of any action or discussion regarding the hiring, firing, or discipline of a local employee. All such actions and discussions would be exempt from all collective bargaining negotiations.

Executive Authority Under State of Emergency

SB 5028 (Newman) would prohibit the Governor from issuing any rule, regulation, or order pursuant to his powers under the Emergency Services and Disaster Law affecting the operation of any public or private elementary or secondary school in the Commonwealth. The bill would also prohibit the State Board of Health from making any emergency order or regulation affecting the operation of any public or private elementary or secondary school in the Commonwealth.  HB 5050 (Helmer) and SB 5039 (Marsden) would grant the Governor authority during a disaster caused by a communicable disease of public health threat for which a state of emergency has been declared to establish a program through which the Governor may purchase personal protective equipment (PPE) for private, nongovernmental entities and distribute the PPE to such private, nongovernmental entities. The bill would exempt the Governor's procurement of such PPE from the provisions of the Virginia Public Procurement Act. In addition, a significant number of bills were introduced that relate more generally to various limitations on executive authority during states of emergency.

Alternative Supervision of Public Schools (not-for-profit operating entities)

HB 5022 (Davis) would permit any school board to enter into an operating contract with a not-for-profit entity (operating entity) to (i) require the school board to transfer its constitutional authority to supervise a public elementary or secondary school in the local school division in which at least 50 percent of enrolled students are eligible for free or reduced price lunch (qualified school) to the operating entity, including its authority relating to personnel and curriculum, for an initial period of at least two years, provided, however, that the qualified school shall be subject to all federal and state accountability requirements prescribed by law or regulation; (ii) require the operating entity to make available services that contribute to a clean and safe environment for in-person instruction in a qualified school during a pandemic or nutritional support, after-school academic and mentorship services, health care support by licensed nurse practitioners or doctors, and dental care by dental hygienists or dentists to each student enrolled in the qualified school; (iii) permit the operating entity to seek reimbursement under Medicaid for all services described in clause (ii) that are provided to eligible students; (iv) require the operating entity to establish performance metrics for the qualified school and biannually report to the school board on its compliance with such metrics; and (v) require the supervision of the qualified school to be transferred back to the school board if the operating entity breaches the operating contract or fails to meet the performance metrics established in the operating contract. The bill would permit any such operating contract to contain provisions for the use of local school division services for the qualified school, including transportation, food services, and extracurricular activities. The bill would provide that each operating entity is entitled to matching state funds pursuant to the general appropriation act in an amount equal to 25 percent of all funds that the operating entity invests to provide the services described in clause (ii) in the qualified school.

School Security Officers - VRS

SB 5071 (Cosgrove) would provide that if a retired law-enforcement officer was employed by a local school division as a school security officer on January 1, 2020, and had a bona fide break in service of at least one month between retirement and employment as a school security officer, such person is not required to establish a 12-month break in service that would otherwise be required by law. The bill would have a delayed effective date of July 1, 2021.