Legal Compliance/Awareness Checklist
Association of Christian Schools International
Colorado Springs, CO
January 2022
Introduction
In today’s rigorous legal and regulatory climate, it is important for administrators and school board
members to make sure that their schools are in compliance with all applicable laws and regulations.
Failure to do so could subject the individuals and their schools to fines, penalties, and adverse
publicity. For more than a decade ACSI has published updated versions of its Legal Compliance
Checklist in the Legal/Legislative Update newsletter.
ACSI is not rendering legal advice in providing this checklist, nor does it claim that the list is all-
inclusive. The checklist is but an attempt to acquaint individuals with some of the major legal issues
that impact their schools. If there are questions regarding whether a school is, or needs to be, in
compliance with the laws or regulations referenced below, please seek professional legal counsel.
Remember that this list will change over time, since laws and regulations are changed on a regular
basis.
NOTE: To gain further information, forms, policies regarding the various topics that are being
presented you may visit the websites of governmental agencies provided in various sections below.
For more significant questions or analysis you may want to consider consulting with a certified public
accountant or attorney that specializes in these areas.
NOTE: Paragraphs that are shaded have been added or have had changes made recently!
Personnel Issues
___ Immigration Reform and Control Act of 1986 (8 USC § 1321 et seq.)
All new employees are to fill out Department of Homeland Security’s I-9 Form on the first day of hire
and must provide their documentation proving that they are eligible to work in the US within three
business days of hiring. The school verifies documents and completes the form.
Forms are updated as required when original verifying documents reach their expiration dates.
The forms are retained by the school and made available for inspection for three years after the date
of hiring or one year after the date of the employee’s termination, whichever is later.
Retain I-9s in separate folder.
Be sure to update information when authorizing documents expire.
The U.S. Citizenship and Immigration Services (USCIS) posted the newest version of the I-9 at the
USCIS website. A copy of the I-9 can be found at https://www.uscis.gov/i-9.
Employers should be using the form that is labeled 10/21/19 and expires on 10/31/2022.
Note: Employers do NOT have to complete a new Form I-9 for current employees if they already
have a complete I-9 on file for that worker (unless re-verification applies). Unnecessary verification
efforts of your employees could trigger a discrimination complaint. Only use the new form with new
hires or employees who need I-9 re-verification.
2
___ Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (42 USC § 1305
plus additional multiple references)
Requires states to have new hire reporting programs for the purpose of strengthening child support
enforcement. Employment security and workers’ compensation programs will also have access to
the information to detect and prevent erroneous benefit payments.
Employers must report newly hired employees within 20 days by providing a copy of the W-4 form to
the designated state agency. The amount of days allowed for reporting may vary in a few states.
You can check your state law at https://www.acf.hhs.gov/css/resource/state-new-hire-reporting-
websites
___ Title VII of the Civil Rights Act of 1964 (42 USC § 2000e) and Other Civil Rights Statutes
Title VII applies to employers with 15 or more employees and requires that the school not
discriminate on the basis of race, color, sex, or national origin in its employment decisions. Title VII
permits job-related religious discrimination by a religious employer (42 USC 2000e-1). Title VII also
prohibits employers from providing fringe benefits on a discriminatory basis.
Title VII prohibits sexual harassment in the workplace. The school must adopt a written policy
prohibiting sexual harassment and disseminated it to all new and existing employees. The school
also conducts appropriate in-service regarding the policy. (CA schools must also have a student-to-
student non-harassment policy in place.)
The Age Discrimination in Employment Act of 1967 (29 USC § 621 et seq.) is an
amendment to Title VII. It applies to employers with 20 or more employees. Employers must
guard against making any employment decisions that unfairly impact employees age 40 and
over. https://www.eeoc.gov/laws/types/age.cfm
The Pregnancy Discrimination Act of 1978 (42 USC § 2000e[k]) is another amendment to
Title VII. It makes it clear that Title VII treats discrimination against a woman because of
pregnancy, childbirth, or a related medical condition as unlawful sex discrimination.
https://www.eeoc.gov/laws/types/pregnancy.cfm
Genetic Information Nondiscrimination Act (PL 110-233)
The Genetic Information Nondiscrimination Act (GINA) was signed into law by President
Bush on May 21, 2008. It is designed to prohibit the improper use of genetic information in
health insurance and employment. It prohibits group health plans and health insurers from
denying coverage to a healthy individual or charging that person higher premiums based
solely on a genetic predisposition to developing a disease in the future. The legislation also
bars employers from using individuals’ genetic information when making hiring, firing, job
placement, or promotion decisions. https://www.eeoc.gov/eeoc/publications/fs-gina.cfm
www1.eeoc.gov/employers/poster.cfm.
___ Americans with Disabilities Act (42 USC § 12101 et seq.)
Direct medical and disability questions should not be asked on employment applications or during
oral interviews (42 USC § 12112[d]). The school may require a medical exam prior to employment
only if all entering employees are subjected to such exams and the medical history/information is
treated confidentially. However, supervisors may be informed of necessary work restrictions and first
aid requirements. Safety personnel may be informed if emergency treatment might be required.
Attempts are to be made to provide “reasonable accommodation” to the disabled so that they could
perform the “essential functions” of a job and thereby have an equal opportunity to qualify for
employment.
3
The Americans with Disabilities Act does not prohibit a religious school from giving preference in
employment to individuals of a particular religion. Religious schools may require all employees to
conform to religious tenets (42 USC § 12113[c][1] and [2]).
Employers can refuse to assign an individual who has an infectious or communicable disease to a
job involving food handling (42 USC § 12113[d][2]).
The Americans with Disabilities Act Amendments Act went into effect on January 1, 2009. This new
amendment broadly expands the definition of disability and does away with many Supreme Court
cases which defined disabilities in narrow terms. More information is available through the ACSI
Legal Legislative Office. https://www.eeoc.gov/eeoc/publications/fs-ada.cfm
___ Fair Labor Standards Act (FLSA) (29 USC § 201 et seq.)
The FLSA establishes the minimum wage and a 40-hour workweek with time-and-a-half pay for
overtime work. Child labor is also regulated under the FLSA.
Under the FLSA employees are divided into the two broad categories of exempt and nonexempt
employees depending upon whether the employer must pay them overtime wages. Executive,
professional, and administrative employees can qualify as "exempt" employees.
CAUTION: The Dept. of Labor looks at duties, not titles of individuals when determining whether
they are properly classified as “exempt” from overtime or not.
As of January 1, 2020, a person must be paid a minimum of $684 per week worked as one of the
qualifications necessary to be an exempt employee. This amount remains the same for 2022. There
are states with a higher minimum wage for exempt employees. Check your state laws. Note:
Teachers are exempt from this minimum salary under Federal law. See DOL Fact Sheet #17C at
https://www.dol.gov/whd/overtime/fs17c_administrative.htm and Fact Sheet #17D at
https://www.dol.gov/whd/overtime/fs17d_professional.htm. These fact sheets have not been
updated at this time with the new minimum wage of $684 per week.
Note: Giving someone a salary does not make them an exempt employee. School administrative
assistants or secretaries are often misclassified as exempt employees. Only under limited
circumstances would a school administrative assistant or secretary meet all the criteria for qualifying
for the exempt classification.
___ Equal Pay Act (EPA) (29 USC § 206)
The Equal Pay Act amended FLSA. It requires employers to provide women and men with equal pay
when their jobs require equal or substantially equal skill, effort, and responsibility and are done
under similar working conditions. Equal pay should not be confused with the concept of “comparable
worth,” which is not currently in any federal employment law.
https://www.eeoc.gov/eeoc/publications/fs-epa.cfm
Do not pay “head-of-household” allowances since even gender-neutral “head-of-household” policies
are illegal under the EPA.
___ Federal Minimum Wage Law (29 USC § 206)
The school must pay at least federal minimum wage ($7.25 as of July 24, 2009) to support staff.
(Several states have a higher state minimum wage which must be paid instead of the federal
minimum wage.) You can check your state minimum wage at this site:
https://www.laborlawcenter.com/state-minimum-wage-rates/
___ Information About Personnel Laws Is Posted as Required by Law
Information about federal laws must be posted for faculty and staff. Examples include: Americans
with Disabilities Act (42 USC § 12115); Age Discrimination in Employment Act (29 USC § 627); Civil
4
Rights Act of 1964 (Title VII) (42 USC § 2000e-10); Williams Steiger Occupational Safety and Health
Act (29 USC § 657); Employee Polygraph Protection Act (29 USC § 2003); Family Medical Leave
Act (29 USC § 2619[a]); Fair Labor Standards Act (29 USC § 201); and Federal Minimum Wage (29
USC § 206).
The best way to determine which federal posters are required is to go to
www.dol.gov/elaws/posters.htm. This site will walk you through some questions and determine
which posters are required of your school. All federal posters can be downloaded for free through
this same website. To determine which state posters you need, go to
www.dol.gov/whd/contacts/state_of.htm.
[Note: Here are the websites for four vendors that have the federal and state charts that you can
purchase:
HR Direct – http://www.hrdirect.com/; Personnel Concepts – http://www.personnelconcepts.com and
Walmart – www.walmart.com]
___ Federal Unemployment Tax Act (FUTA) (26 USC § 3301)
With changes in federal law in 1997, all three categories of Christian schools have a choice on
whether they pay FUTA taxes. Category I (schools owned and operated by a church or a
convention or association of churches), and Category II (schools that are a separate corporation
formed by a church or a convention or association of churches) were exempted from FUTA since a
1981 decision by the US Supreme Court. Category III (independent, non-church affiliated religious
schools) were exempted by a change in the law in 1997. Most state unemployment laws mirror the
federal law. Check with your state’s labor department to see if there is tax liability for your school. All
three types of Oregon schools must pay the state unemployment taxes.
___ Uniformed Services Employment and Reemployment Rights Act of 1994 (38 USC § 4301
et seq.)
This law was significantly updated October 1996. It prohibits employers from discriminating against
applicants for employment and employees because of “service in the uniformed services.” The law
covers all the uniformed services (e.g., Army, Navy), including reservists (e.g., Air Force Reserve),
Army and Air National Guard members, and the commissioned corps of the Public Health Service.
These individuals have reemployment rights when they are on active duty, active duty for training,
full-time National Guard duty, and absence from work for an exam to determine a person’s fitness
for any of these types of duty.
Employers do not have to keep paying these individuals while they are on duty, but they cannot be
fired, demoted, or have their benefits cut while on active duty. If military-related absences total less
than five years, employers must reemploy these workers in their old jobs or jobs with the same
status, seniority, pay, and benefits. These requirements apply to both full-time and part-time
workers. To be protected, the employees must provide timely oral or written notifications to their
employers of their calls to duty and must report back to work for reemployment in a timely manner.
(See law for details.)
Employees who are temporarily absent from work due to military service can make “catch-up”
payments to their employer’s qualified retirement plans (including 403[b] tax-sheltered annuities) for
contributions they missed while away. The catch-up contribution cannot exceed the amount the
employees would have been permitted to contribute had they not been absent from work.
USERRA also provides for the continuation of health benefits even if their employers are not
covered by COBRA. If a person’s health plan coverage would terminate because of an absence for
military service, he/she may elect to continue health plan coverage for up to 24 months after the
absence begins. He/she cannot be required to pay more than 102 percent of the full premium for the
coverage.
5
NOTE: USERRA temporarily cancels the returning employee’s at-will status. Returning soldiers who
are gone more than 180 days receive this extra protection for one year. Those gone for 30-180 days
are given six months worth of extra protection. This means that these individuals cannot be fired at
will by the employer but must have clearly violated some business rule. This makes hourly
employees just like administrators or teachers that have contracts. They cannot be fired unless the
school has “just cause” for firing them. “Just cause” reasons are usually spelled out in contracts and
the employee handbook. Tread lightly here. Be sure to check with an attorney before taking any
termination actions!
If you have questions regarding this law, contact https://www.dol.gov/vets/programs/userra/ where
you can download information about the law.
___ Veterans’ Benefits Improvement Act of 2004 (38 USC § 101, et seq)
On December 10, 2004, President Bush signed into law the Veterans’ Benefits Improvement Act of
2004, which expands certain rights for veterans. The act amends the Uniformed Service
Employment and Reemployment Rights Act (USERRA) by (1) increasing the amount of time a
veteran and his or her family can remain on an employer’s health coverage plan from 18 months to
24 months; and (2) requiring employers to provide employees with a notice of the rights, benefits,
and obligations of the employee and the employer under USERRA. This obligation can be met by
simply putting up a labor poster in the general area where all labor posters are hung. Employers
should do these two things: (1) make sure that all employment materials, medical plan descriptions,
etc., are changed to reflect the increased medical coverage for veterans; and (2) secure and post
the newly required USERRA poster that must be posted beginning March 2005. Note: You can
download this free poster by going to
http://www.dol.gov/vets/programs/userra/USERRA_Federal.pdf.
___ Equal Employment Opportunities Commission (Under general authority of the Commission
as conferred by 42 USC § 2000e-8) Employers of 100 or more must submit an EEO-1 Report by e-
transfer by September 30th each year regarding the racial breakdown of their work force. For
information regarding this law and instructions on how to e-transfer the form, call (866) 286-6440.
Note: ACSI recommends that you do not ask the racial background or ethnicity of individuals until
after they are hired. Small schools with less than 100 employees do not need to ask for this
information. https://www.eeoc.gov/employers/eeo1survey/
___ Family and Medical Leave Act of 1993 (29 USC § 2611 et seq.)
There is no statutory exemption of religious institutions under this Act. All schools must be in
compliance with the wall-posting requirement. Schools must keep and preserve records pertaining to
their compliance with this Act.
Large schools with 50 or more employees are to be in compliance with all other provisions of the Act
that may require up to 12 weeks of unpaid leave during any 12-month period for “eligible
employees.” Provisions of this Act include special rules regarding leave for instructional employees
(29 USC § 2618).
An eligible employee who complies with notice requirements under the Act is to be restored to the
same or equivalent position upon his/her return, with no loss of benefits accrued prior to leave.
To be eligible for FMLA benefits, an employee must:(1) work for a covered employer; (2) have
worked for the employer for a total of at least 12 months; (3) have worked at least 1,250 hours over
the previous 12 months; and (4) work at a location where at least 50 employees are employed by
the employer within 75 miles. (Note: Employees located on several campuses of the same school
would count together for the total.)
ELIGIBILITY NOTE: Many part-time employees, such as cafeteria workers, bus drivers, and teacher
aides, likely will not be eligible for FMLA leave even though other employees of a large school will be
6
eligible. Based on a 180-day year, a part-time employee would have to work almost seven hours a
day or 35 hours a week to be eligible since they must work at least 1,250 hours in the previous 12
months to qualify for leave.
When figuring whether an employee is eligible for FMLA leave based on the number of hours
worked in the previous 12 months, be sure to count the months and hours that military reservists or
National Guard members would have worked if they hadn’t been called for duty.
Leave must be granted to eligible employees for:
(1) the birth or placement of a child for adoption or foster care;
(2) to care for an immediate family member (spouse, child, or parent) with a serious health
condition; or
(3) to take medical leave when the employee is unable to work because of a serious health
condition.
Serious health condition means an illness, injury, impairment, or physical or mental condition that
involves:
(1) any period of incapacity or treatment connected with inpatient care (i.e., an overnight
stay) in a hospital, hospice, or residential medical care facility;
(2) any period of incapacity requiring absence of more than 3 calendar days from work,
school, or other regular daily activities that also involves continuing treatment by (or
under the supervision of) a health care provider; or
(3) continuing treatment by (or under the supervision of) a health care provider for a chronic
or long-term health condition that is incurable or so serious that , if not treated, would
likely result in a period of incapacity of more than 3 calendar days, and for prenatal care.
Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks
of family leave for the birth or placement of a child for adoption or foster care and to care for a parent
(but not a parent-in-law) who has a serious health condition.
Intermittent FMLA Leave. FMLA allows the use of intermittent leave and reduced schedule leave
for only two of the four qualifying reasons for leave. It is allowed for employees with a serious health
condition or when the employee is needed to care for a family member with a serious health
condition. Leave for adoption, foster care, or birth of a child may not be taken intermittently or on a
reduced schedule unless the employer and employee voluntarily agree on such arrangement.
Periods of intermittent leave may range from an hour to several days. If this leave is for planned
medical treatment, the employee must try to schedule the treatment to create the least disruption for
the school.
How can I keep tardy employees from routinely claiming FMLA leave? First, designate that
intermittent FMLA leave be taken in no less than the shortest period of time recognized by your
payroll system.
Second, require medical certification that says intermittent leave is needed. If a tardy employee does
not provide a completed medical certification form in a timely way, deny leave and hand out
progressive discipline as described in your school’s attendance policy.
FMLA Employee Requirements to Use Leave. Employees seeking to use FMLA leave may be
required to provide:
(1) 30-day advance notice when the need is foreseeable;
(2) medical certifications supporting the need for leave due to a serious health condition
affecting the employee or an immediate family member;
7
(3) second or third medical opinions and periodic recertifications (at the employer’s expense);
and
(4) periodic reports during FMLA leave regarding the employee’s status and intent to return
to work.
Employer Requirements Under FMLA Leave.
If there is an employee handbook or other written guidance to employees, the entitlements and
employee obligations under FMLA must be set forth in the handbook or other document. If the
employer does not have written policies, manuals, or handbooks describing employee benefits, the
employer must provide written guidance to an employee whenever the employee requests leave
under FMLA.
While employees are asked to provide 30-day notices when possible, many times the need for leave
will not be foreseeable. In these cases, the employees need to inform the school “as soon as
practicable,” which means verbal notification within one or two business days of realizing the need to
take leave.
Note: Employees (or their representatives) need not mention the FMLA when they seek the leave.
As long as the employee informs you of the specific reason for the leave, the burden is on the school
to draw a preliminary conclusion about whether such leave falls under the FMLA.
Within two business days after you learn of an employee’s FMLA-related absence, the school must
send a written notice to the individual that the leave falls under the FMLA. By putting employee on
official notice in this manner, you set the 12-week meter running. Failure to notify an employee that
leave is being deducted from the FMLA entitlement may prevent the school from counting that time
against the 12-week allotment.
Note that several different types of FMLA-related absences could occur in a 12-month period
necessitating written notices each time.
Your FMLA notification letter should cover these issues:
(1) The employee’s need to provide the school with medical certification that proves
the leave qualifies under the FMLA.
(2) The employee’s need to present medical certification that he/she is fit for duty
upon return from leave.
(3) The school’s policy regarding whether paid leave must be used first or not.
(4) Whether the employee must make partial premium payments to maintain health
insurance benefits while on leave.
(5) The employee’s potential liability for payment of health insurance premiums if
he/she does not return to work from leave.
(6) The employee’s right to return to the same or an equivalent job after the leave. If
the employee fits the definition of a “key employee” the notification that a job
may not be available after leave concludes.
Schools must keep and preserve records pertaining to their compliance with this Act. Keep copies of
all notices, letters, medical compliance forms, etc.!
Notify Staff How You Count FMLA Year. Under FMLA, qualified employees are eligible to take up
to 12 weeks of unpaid leave during a 12-month period. But the law lets each company choose
among four options how it will calculate those 12 months:
(1) the calendar year;
(2) any fixed 12-month “leave year,” such as the fiscal year, a year required by state law, or a
year starting on the employee’s anniversary date;
(3) the 12-month period starting with the date an employee’s first FMLA leave begins; or
8
(4) a rolling 12-month period measured backward from the date an employee uses any
FMLA leave.
Most employers recommend the rolling month method. Under this approach, “each time an
employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks
which has not been used during the immediately preceding 12 months.” So, if an employee had
used the full 12 weeks by May, no more leave would be available until the following May.
The method chosen must be used for all employees and should be explained in your employee
handbook or employment materials. If changed, 60-day notice required.
Maintenance of Health Benefits. A covered employer is required to maintain group health
insurance coverage for an employee on FMLA leave if the insurance was provided before the leave
was taken and on the same terms as if the employee had continued to work.
If applicable, arrangements will need to be made for employees to pay their share of health
insurance premiums (copay) while on leave. Employees have a 30-day grace period after the
agreed upon date for co-payment without affecting health benefits coverage. If the employee does
not make the payment within the grace period, the employer may discontinue health coverage on
the date the grace period ends, or the employer may choose to continue health coverage by making
the premium payments. Employers that choose to pick up the employee’s share of health care costs
during leave are entitled to recover the additional payments after the employee returns to work.
If an employee fails to return to work, the employer may recover premiums it paid to maintain health
coverage during FMLA leave.
Employers are not required to continue life insurance or other benefits during the absence. However,
most employers probably keep these benefits going, especially for short term FLMA leaves, because
of all the paperwork.
Job Restoration. Upon return from FMLA leave, an employee must be restored to his/her original
job, or to an equivalent job with equivalent pay, benefits, and other employment terms and
conditions. In addition, an employee’s use of FMLA leave cannot result in the loss of any
employment benefit that the employee earned or was entitled to before using FMLA leave.
New Provisions That Started in 2008
Family Leave Due to a Call to Active Duty. This benefit provides 12 weeks of FMLA unpaid leave
due to a spouse, son, daughter, or parent being on active duty or having been notified of an
impending call or order to active duty in the Armed Forces. Leave may be used for any “qualifying
exigency” arising out of the service member’s current tour of active duty or because the service
member is notified of an impending call to duty in support of a contingency operation. “Qualifying
exigency” is not defined in the new law but will probably be defined in regulations that are being
formulated.
Caregiver Leave for an Injured Service Member. This benefit provides 26 weeks of FMLA unpaid
leave during a single 12-month period for a spouse, son, daughter, parent, or nearest blood relative
caring for a recovering service member. A recovering service member is defined as a member of the
Armed Forces who suffered an injury or illness while on active duty that may render the person
unable to perform the duties of the member’s office, grade, rank, or rating.
2009 changes to the Family and Medical Leave Act (FMLA) regulations took effect January 16,
2009. These are the first significant changes since 1994. It addresses two new forms of military
leave and then makes some major adjustments to the original regulations.
9
Fiscal Year 2010 National Defense Authorization Act (H.R. 26470). This new law included an
expansion of the recently enacted exigency and caregiver leave provisions for military families under
the Family and Medical Leave Act of 1993 (FMLA).
H.R. 2647 expands the exigency leave benefits to include family members of active duty service
members. Under current law, only family members of National Guard and Reservists are eligible for
“exigency leave.
H.R. 2647 expands the caregiver leave provision to include veterans who are undergoing medical
treatment, recuperation or therapy for serious injury or illness that occurred any time during the five
years preceding the date of treatment.
H.R. 2647 also revises the definition of "serious injury or illness" for active duty members and
provides a slightly different definition for veterans. Both are now defined to include an injury or
illness that existed before the beginning of the member's active duty and was aggravated by service
in the line of duty on active duty in the Armed Forces. And, for veterans, the definition further adds
that the injury or illness may manifest itself before or after the member became a veteran.
To be eligible for the leave, employees must work in organizations of 50 or more employees and
work at least 1,250 hours in a 12-month period.
Complete information can be found at http://www.dol.gov/whd/fmla.
___ Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 USC § 300gg)
HIPAA does not require any school to offer any specific type of medical insurance coverage. It does
not even require a starting date for coverage. A school can decide not to offer insurance; or subject
to existing nondiscrimination laws, may only cover certain classes of employees; or require a waiting
period before any coverage takes effect.
Their intent is to protect the security of medical information of employees. Now health care providers
such as insurers, doctors, and pharmacies must obtain patents’ approval before disclosing private
medical information in “nonroutine” processes, such as releasing it to an employer or using it for
marketing purposes. The regulations give patients more access to their personal medical records
and allow them to request changes to correct errors.
Employers may require employees upon enrollment into a health plan to sign a release form that will
offer the employer, health care providers, and insurance companies the access they need to medical
records.
The regulations exempt workers’ compensation policies, and long-term and short-term disability
insurance programs from the regulations so that workers will not prevent employers for access to
information needed to administer and enforce these programs.
Schools should take at least these four steps to ensure compliance under the rules:
(1) Ask your health insurance broker and provider to provide information as to what they
have done to ensure compliance with these regulations;
(2) Police any business associates who whom your school shares protected health
information—such as technology vendors and insurance plan administrators—and rewrite
contracts to assure that third parties are in full compliance with HIPAA;
(3) Make sure that all medical information is kept physically separate from other employee
records. Access to this information should be strictly restricted;
(4) Appoint a privacy officer to help with compliance with HIPAA policies.
10
Many states have developed their own health-information protections. HIPAA’s standards generally
pre-empt state law unless the state rules are stricter.
If you are a covered entity under HIPAA, the first phase of compliance targeted the privacy of
medical records. This last phase of HIPAA targets the security of those records. The privacy rule
and the security rule are distinct but inextricably linked. Good privacy depends on good security
measures. Your school must comply with the security rule if your insurance premiums and payments
are less than $5 million per year. Read more on HIPAA at https://www.hhs.gov/hipaa/for-
professionals/privacy/guidance/index.html.
The Affordable Care Act (ACS) passed in 2010 provides additional health protections. Insurance
companies cannot longer deny insurance to individual due to pre-existing conditions. For more
information, go to https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-
act/for-employers-and-advisers
___ Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (29 USC § 1161 et
seq., and 42 USC § 300bb-1 et seq.)
Lay-board (Category III) schools are to be in compliance with COBRA, which provides eligible
employees and certain family members the right to continue health care coverage, at the employee’s
expense, under an employer’s group health plans. This applies to employers with 20 or more full-
and part-time employees. Church owned and operated schools are not covered by this law.
Get help when you need it. You can contact the Employee Benefits Security Administration
(EBSA), Office of Regulations and Interpretations at 202-693-8523. Publications on COBRA may be
obtained on EBSA’s website at http://www.dol.gov/ebsa under Resources.
___ Medicare Prescription Drug Improvement and Modernization Act (42 USCS § 1395kk-1)
Every employer that offers prescription drug coverage to active or retired employees, or their
dependents/spouses, who are eligible for Medicare must comply with two notification requirements
issued by the Centers for Medicare & Medicaid Services (CMS).
(1) Part D eligible individuals (i.e., those active or retired employees, or their dependents/spouses,
who are entitled to Medicare benefits under Part A or are enrolled in Part B) who are enrolled in, or
seek to enroll in, their employer’s prescription drug coverage plan must be notified of whether such
private coverage qualifies as credible prescription drug coverage under the rules of Part D. This is
because individuals who do not enroll in Part D coverage when they are fully eligible face a limit on
when they can enroll and a late enrollee penalty unless they had “credible coverage” under another
plan. To prevent this from happening, employers are required to advise individuals of the potential
penalties if the prescription plan is not deemed to be credible under CMS guidelines. Note: This
notification requirement applies regardless of whether or not the employer applies for the new retiree
drug subsidy.
(2) Employers must notify the CMS of whether the coverage is credible or not. Prescription drug
coverage is credible for Part D purposes if the actuarial value of the coverage exceeds the actuarial
value of the standard prescription drug coverage as defined by the CMS.
These notices must be provided annually, before the 15
th
of November, and: (a) before the
individual’s initial enrollment period for part D; (b) before the effective date of enrollment in the
prescription drug coverage or upon the date of any change in credible coverage; and (c) upon
request. Summary of the ACT: http://www.kff.org/medicare/med011604pkg.cfm
___ Occupational Safety and Health Act of 1970 (29 USC § 651 et seq; 29 CFR § 1904)
The Occupational Safety and Health Administration (OSHA) of the US Department of Labor requires
all employers to comply with the general duty clause (29 USC § 654(a) which stipulates that
11
employers must provide employment and a workplace free from recognized hazards likely to cause
death or serious injury. Other sections of the law deal with specific workplace safety issues.
OSHA requires employers to report, within eight hours, the death of an employee or the
hospitalization of three or more employees in work-related accidents. The report must be made by
telephone or personally at the area office of OSHA, or by using this telephone number: 800/321-
6742. This number may also be used to obtain OSHA information. Required information includes:
the name of the organization, location of the incident, number of fatalities or hospitalized employees,
contact person, phone number, and a brief description of the incident. [Note: Individual states may
have more stringent catastrophic reporting requirements.]
Currently, employers must maintain a log of occupational illnesses and injuries using OSHA Form
300, but (for schools) only if notification in writing is received from the Bureau of Labor Statistics that
the employer has been selected to participate in a statistical survey. If no such notice is received,
the OSHA Form 200 is not necessary. Schools should also check to see if there are any state
record-keeping requirements in this area.
Since 2015, all employers are required to contact OSHA within 24 hours following an occurrence of
any in-patient hospitalizations, amputations, or loss of an eye, as well as the current requirement to
contact OSHA within eight hours following a fatality. For reporting compliance, employers have three
options when contacting OSHA: 1) call the nearest area office; 2) call OSHA’s 24-hour hotline 1-800-
321-OSHA (6742); or 3) report online.
___ Electronic Communications Privacy Act of 1986 (18 USC § 2510)
It is illegal for employers or their agents to intercept or endeavor to intercept any wire or oral
communication through use of any electronic, mechanical, or other device (e.g., wiretaps, “bugs”).
The law also prohibits any person from disclosing or using the contents of any wire or oral
communication if there is knowledge or a reason to know that the information was obtained through
an unlawful interception.
Exceptions. Consent for surveillance may be given by an employee. Phone calls in the “ordinary
course of business” may be intercepted. Personal phone calls cannot be intercepted or recorded,
but personal phone calls may be prohibited during working hours. The interception of “course of
business” calls is permitted only when the equipment used is part of the overall telephone systems,
e.g., an extension line. It is suggested that notice be given to employees that “course of business”
calls are monitored.
Video surveillance that does not record sound is not subject to the federal wiretap law. (Therefore,
videos in buses, classrooms, common areas, offices, and the like are permitted.) The addition of an
audio component to such monitoring will subject an employer to liability.
Email. An employer may monitor email messages if advance notice has been given to the
employees. Consider putting a paragraph about employer monitoring in your employee handbook.
Consider putting a paragraph about employer monitoring in your employee handbook. Here is a
sample notice that could be displayed on computers when they are turned on by employees:
______ Christian School provides technical equipment for job-related purposes and
specifically reserves the right to monitor employees work performance and use of any
mechanical, electronic, or other work-related device, including telephone, voice mail,
computer, Internet, email, and stored email messages. Misuse of ACSI equipment
may lead to disciplinary action up to and including dismissal.
[Note: State law must be considered as it may be more restrictive than federal law regarding
surveillance issues.]
12
___ Employee Polygraph Protection Act of 1988 (29 USCA § 2001 et seq.)
This Act prohibits employers from requiring employees or applicants for employment to take or
submit to any lie detector test. Employers cannot (1) use or inquire concerning the results of any lie
detector test, or (2) discipline or deny promotion for refusal to take such a test or because of the
results of such a test.
An employer may request an employee to submit to a lie detector test in connection with any
ongoing investigation involving economic loss or injury to the employer’s business (as from theft,
embezzlement, or misappropriation) if certain additional conditions are met.
___ Fair Credit Reporting Act (15 USCA § 1681 et seq.)
Obtaining and using credit reports is regulated under the Fair Credit Reporting Act. An “investigative
consumer report” about an applicant for employment may not be obtained or prepared unless the
applicant has received a disclosure that an investigative consumer report (with information about
character, general reputation, personal characteristics, and mode of living) may be requested or
obtained. Disclosure must be as specified in the law. It must be clear, conspicuous, and in writing,
and cannot be a part of an employment application. https://www.consumer.ftc.gov/articles/pdf-0096-
fair-credit-reporting-act.pdf
When adverse employment action is taken based on information in a credit report, the person must
be so advised. [Note: The federal Bankruptcy Code prohibits a prospective employer from refusing
to hire a candidate for employment due to bankruptcy.]
___ Fair and Accurate Credit Transactions (FACT) Act (15 USC § 1681a)
This act was passed to fight against the increasing problem of identity theft and consumer fraud.
Since 2005, it requires every employer to appropriately dispose of any documents—whether paper,
electronic, or other format—that contain personal information derived from a credit report or other
types of consumer information reports obtained from third parties such as credit reporting agencies
when it comes time to purge your employees’ personnel files.
The Federal Trade Commission does not specify how information must be disposed of, but it says
that reasonable measures must be taken to protect against unauthorized access to or use of the
information. Disposal could be as simple as using a paper shredder for paper items. Information
stored electronically, such as on computer discs or hard drivers, could be overwritten or wiped clean
using tools you can purchase or obtain for free on the Internet, or even, as the FTC suggests, by
taking a hammer to the disc or hard drive containing the information.
https://www.ftc.gov/enforcement/statutes/fair-accurate-credit-transactions-act-2003
___ Title III, Consumer Credit Protection Act (15 USC § 1671 et seq.; 29 CRF 870)
This Act protects employees from being discharged by their employers because their wages have
been garnished for any one debt and limits the amount of employees’ earnings that may be
garnished in any one week. https://www.dol.gov/agencies/whd/wage-garnishment
___ Employee Retirement & Income Security Act of 1974 (ERISA) (29 USC § 1001 with further
amendments in 1990)
All organizations with 25 or more employees must comply with ERISA, which sets minimum
compliance standards for benefit plans offered by employers. Benefit plans have been broadly
defined to include retirement, medical, health care, and other types of “vesting” benefits such as
vacation plans. ERISA requires that all employees similarly situated (for instance, all full-time
employees) must receive the same benefits from programs and plans provided through the
employer. Employers must make available complete plan-description booklets to employees who
request them. For more information go to https://www.dol.gov/general/topic/health-plans/erisa.
13
Student Issues
___ Title VI of the Civil Rights Act of 1964 (42 USC § 2000d)
“No person in the United States shall, on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any program
or activity receiving federal financial assistance.” The mandate extends to a school’s student
admissions, financial aid, and virtually every aspect of the federally assisted program.
___ Section 504 of the Rehabilitation Act of 1973 (29 USC § 794)
The school must provide “reasonable accommodation” to disabled students if the school is a
recipient of direct federal funding under some educational act or program.
https://www2.ed.gov/about/offices/list/ocr/504faq.html
___ Floyd D. Spence National Defense Authorization Act (P.L. 106-398)
In section 563, this Act grants the military access to public and private secondary school student
names and addresses for recruiting purposes. If you are contacted for this information, there are four
possible responses: (1) send the list; (2) explain that such names are not available to colleges or
prospective employers and therefore, they are not available to a military recruiter; (3) explain that the
school board has adopted a policy prohibiting the releasing of names for this purpose; or (4) show
that the school has historic religious objections to military service and invoke section 563(c)(5)(b).
___ Telecommunications Act of 1996 (47 USC § 230 et seq.)
The Schools and Libraries Universal Service program was established as part of the
Telecommunications Act of 1996 to provide affordable telecommunications services for all eligible
schools and libraries, especially those in rural and economically disadvantaged areas.
___ Children’s Internet Protection Act of 2000 (47 USC § 230 et seq.)
This Act requires schools and libraries that receive funding under either Title III of the Elementary
and Secondary Education Act or the Museum and Library Services Act, or that receive universal
service discounts for Internet access (“E-rate”) to adopt an Internet safety policy incorporating the
use of filtering or blocking technology on computers with Internet access. You will find more
information at www.universalservice.org or https://www.usac.org/e-rate/
___ Children’s Online Privacy Protection Act (COPPA) (15 USC § 6501 et seq.; 16 CFR § 312)
COPPA requires that certain commercial, educational websites get parents’ consent before
collecting any personal information from children under age 13. Prior parental consent is not
required when (1) a website operator collects a child’s or parent’s email address to provide notice
and seek consent, or (2) an operator collects an email address to respond to a one-time request
from a child and then deletes it.
The Act allows school districts to permit their teachers to give consent on parents’ behalf during
school activities. In those districts that permit teachers to give consent, parents are to be sent a
letter about COPPA and are asked to sign a permission slip granting or denying permission. Under
this scenario both parents and teachers may rescind their permission. Other districts prohibit
teachers from allowing, encouraging, or requiring students to establish an account with websites that
collect information for advertising purposes. For more information, contact website
http://www.onguardonline.gov/articles/0031-kids-privacy.
___ Child Nutrition and WIC Reauthorization Act of 2004 (P.L. 108-265).
Requires local educational agencies to develop a local school wellness policy. This requirement also
applies to private schools that participate in a program authorized by the National School Lunch Act
or the Child Nutrition Act. Private schools may develop their own wellness policy or adopt the one
from their local education agency. Private schools participating in the Special Milk Program are also
14
required to have the wellness policy. This website provides additional information:
https://www.fns.usda.gov/cn
Operational Issues
___ Maintenance of Employee Records
The various federal laws have different time periods for keeping personnel records. Generally,
employment records can be divided into two broad categories. For example, Christian schools
frequently receive several applications from prospective employees who are not hired. Schools may
even go through an interview process, using an interview form, but still not hire the teacher. In these
cases, the school should retain these records for a minimum of three years following the date of the
decision. The school can then destroy the application information or other prospective employee
records. Each state may have its own record-keeping requirements. Those obligations should be
determined.
In contrast to this category, however, are records for actual employees. The school should retain
these records for a much longer period of time. Schools may need to verify employment or provide
reference information years after an employee has left employment. Therefore, schools should
generally retain personnel file documents of former employees for a minimum of seven years
following the date of termination. This would include all personnel file documents.
Schools may also have some general employment materials not specifically related to an individual
employee. These would include faculty or staff handbooks, job descriptions, tax records or
documents, and organizational documents. These documents should be maintained permanently.
The school should date these documents so that in later years one can easily determine the time
frame of applicability.
___ Jury Systems Improvement Act (28 USC § 1363 et seq.)
This federal law prohibits employers from penalizing employees who take time off for jury service.
Some states have even stricter laws that may even require the employer to compensate the
employee for jury service.
___ General Education Provisions Act, as amended (20 USC § 1221e-11)
The US Bureau of the Census collects educational data for the National Center for Education
Statistics, US Department of Education, under the authority of this Act. Under this and other acts
and programs, randomly selected private schools are sent surveys to collect data that will be used
to develop a profile of the providers of private education in the US. [The US Bureau of the Census
also sends out the Census of Service Industries–Social Services survey under 13 USC for the US
Department of Commerce.]
___ Federal Copyright Act (17 USC § 101 et seq.)
The school must follow the copyright law regarding the use of printed material, music, and other
media products. Section 110 of the Copyright Act, also known as the TEACH Act, contains more
information about how teachers can comply with these guidelines. The Copyright Clearance Center
offers an overview of the TEACH Act at https://www.copyright.com/wp-content/uploads/2015/04/CR-
Teach-Act.pdf.
ACSI recommends that all schools get a license for music, videos etc. from CCLI. ACSI members
receive a 10 percent discount off the license fee. For more information, please visit their website at
www.ccli.com or call CCLI at 1-800-234-2446.
Books and Periodicals
A teacher may:
a. Make a single copy, for use in scholarly research, in teaching, or in preparation for teaching a
class, of the following:
15
(1) A chapter from a book
(2) An article from a periodical or newspaper
(3) A short story, short essay, or short poem, whether or not from a collected work
(4) A chart graph, diagram, drawing, cartoon, or picture from a book, periodical, or
newspaper
b. Make multiple copies for classroom use only, and not to exceed one per student in a class,
of the following:
(1) A complete poem, if it is less than 250 words and printed on not more than two pages
(2) An excerpt from a longer poem if it is less than 250 words
(3) A complete article, story, or essay if it is less than 2,500 words
(4) An excerpt from a prose work, if it is less than 1,000 words or 10 percent of the work,
whichever is less
(5) One chart, graph, diagram, drawing, cartoon, or picture per book or periodical
A teacher may not:
a. Make multiple copies of work for classroom use if it has already been copied for another class
in the same institution.
b. Make multiple copies of a short poem, article, story, or essay from the same author more than
once in a class term.
c. Make multiple copies from the same collective work or periodical issue more than three times
per term.
For more information see: www.copyright.gov.
___ Volunteer Protection Act of 1997 (42 USC § 14501)
Schools can relieve the anxiety of potential volunteers who are concerned about exposure to
financial liability by informing them of the Volunteer Protection Act.
A person is individually protected from liability when an accident or problem occurs if:
a. He/she was acting within the scope of his/her responsibilities
b. He/she was licensed or certified (if that is required for the type of volunteer work being done)
c. He/she did not act willfully or recklessly; or engage in criminal conduct; or act with gross
negligence or conscious, flagrant indifference to the rights or safety of the individual harmed
d. He/she was not operating a motor vehicle, vessel, or aircraft
This law protects the volunteer; it does not protect the school in any way from liability for
compensatory or punitive damages. More information can be found here.
___ Political Activity by Nonprofit Organizations (26 USC § 501[h])
The IRS puts limits on political activity by tax-exempt organizations. The following information should
provide you general guidance.
Tax-Exempt Organizations CAN:
• Conduct Nonpartisan voter registration drives.
• Distribute unbiased, nonpartisan voting records and candidate surveys. The surveys must
cover a broad range of issues, not just the church’s/school’s known agenda. The materials
must not unfairly describe any candidate’s position on an issue or unfairly summarize a
candidate’s voting record. Also, the materials must not be distributed only near election time.
They must be distributed at least one other time during the year, in a non-election season.
• Educate their members on specific issues or pending legislation.
• Have issues awareness committees and meetings to educate members on specific issues or
pending legislation.
• Enlighten members on what they can do if they support or oppose a particular issue.
16
• Expend up to 5% of their total budget on direct lobbying or on contributions to individuals or
groups for the purpose of supporting or opposing specific legislation (not candidates).
• Encourage prayer for a particular issue or public official.
• Host candidate forums if all candidates for a particular office are invited and the forum is
conducted in a nonpartisan manner.
Tax-Exempt Organizations CANNOT:
• Endorse a political candidate.
• Make contributions to a political candidate.
• Participate in political fund-raising endeavors for a political candidate.
• Distribute political materials for a candidate.
• Pay for individuals to attend a caucus for a state or national political convention.
• Donate their mailing list to a candidate or political party.
In summary, IRS guidelines greatly restrict Christian organizations in matters concerning
political candidates and elections but permit them to attempt to influence voters or legislators
regarding issues.
For more information about lobbying activities by nonprofit organizations, check this website:
http://www.irs.gov/Charities-&-Non-Profits/Churches-&-Religious-Organizations
___ Federal Rules of Civil Procedure (FRCP)
The FRCP governs civil procedure in U.S. District Courts, or more simply, court procedures
for civil suits. States make their own rules that apply in their own courts, but most states have
adopted rules that are based on the FRCP. IMPORTANT: If your school receives a letter,
phone call, or verbal message that threatens a lawsuit, all electronic messages that might be
relevant to a potential lawsuit must be saved even if the time frame for saving this
information goes beyond the normal time your school routinely uses to destroy old electronic
files or copy over backup disks. Destroying information stored by some type of electronic
means is “spoliation of evidence” and can be quite costly to your school if the destruction
becomes an issue during a civil lawsuit.
Environmental Issues
___ OSHA’s Final Rule for Bloodborne Pathogens (29 USC § 14501; 29 CFR § 1910.1030)
An exposure control plan is to be written covering each staff position and must be updated annually.
“Interactive” in-service is to be provided to all staff regarding “universal precautions” and other
bloodborne pathogen issues. Latex or vinyl disposable gloves and other appropriate items are to be
provided to all staff. Staff is required to practice universal precautions (29 CFR 1910.1030[d][1]).
Hepatitis B vaccinations are to be offered at school expense to those members of the staff whose
job classifications fall into Group One. All other staff are to be offered the vaccination series within
24 hours of exposure at school expense.
For more guidance from OSHA go to https://www.osha.gov/bloodborne-pathogens.
For training resources from OSHA go to https://www.osha.gov/bloodborne-pathogens/resources.
___ Asbestos Hazard Emergency Response Act (15 USC § 2641 et seq.)
This Act requires that an initial inspection and management plan be prepared unless the school is in
a new building with an occupancy permit dated after October 12, 1988.
17
The management plan for responding to asbestos-containing materials is to be submitted to the
Governor or a designated state official. A copy of the management plan is to be made available in
the school’s administrative offices for inspection by the public.
The school service/maintenance staff must be educated regarding safety procedures with respect to
friable asbestos-containing material, i.e., any asbestos-containing material applied on ceilings, walls,
structural member, piping, duct work, or any other part of a building that, when dry, may be
crumbled, pulverized, or reduced to powder by hand pressure (15 USC § 2644[c]).
The school is to contract for inspections every three years by EPA-certified inspectors. The school’s
in-house “designated person” is to conduct and document premise inspections every six months.
The school must also keep in their office copies of the annual letter to constituents indicating they
may come to the school office to inspect the management plan. (This is required of all schools
whether their facility is asbestos free or not.)
For updated guidance and information on Asbestos and School Buildings go to
https://www.epa.gov/asbestos/asbestos-and-school-buildings.
___ Worker and Community Right to Know Law [Hazard Fact Sheets] (29 USC § 651 et seq.)
The regulations require manufacturers and importers to determine if their products contain
hazardous chemicals. If so, they must make hazard information available through distributors to
users in the form of container labels and material-safety data sheets (MSDS). MSDS must be saved
and made accessible to employees. Employers must develop, implement, and maintain at the
workplace a written, comprehensive hazard communication program that includes provisions for
container labeling, collection, and availability of MSDS, and an employee training program.
A list of hazardous chemicals in each work area must be compiled. Exceptions exist for containers
designed to be sold on the retail market for use by the general public. [Some potential hazardous
chemicals used by schools may include janitorial/cleaning supplies, pesticides, certain office
products, and science lab chemicals—Ed.] Contact OSHA for information on setting up your
program. The EPA has a Chemical Management Resource Guide for School Administrators.
___ Lead Contamination and Control Act of 1988 (42 USC § 300j-21)
This law, an amendment to the Safe Drinking Water Act, asks, but does not require public and
private schools and daycare centers to check the lead levels in their building’s drinking water. Lead
can be leached into the water from lead pipes, solder joints in pipes, and from drinking fountains in
school buildings. For information on how to test your school’s water supply for lead, go to the
Environmental Protection Agency website that covers this at https://www.epa.gov/ground-water-and-
drinking-water
___ Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 USC § 4821 et seq.)
This law applies to housing constructed prior to 1978. There are no exceptions for housing owned by
churches or other charitable organizations. Churches or schools that own or are willed such homes
may be legally liable for injuries caused by lead-based paint to families or to individuals in outside
groups (e.g., a preschool) who purchase, lease, or rent the residential property. Certain documents
must be provided at the time of these transactions. This law does not apply to dormitory housing and
rentals of individual rooms in residential dwellings. The Act does not require sellers to remove lead-
based paint from their property or to inspect their property for the existence of lead-based paint.
Instead, buyers must be notified in writing of any known lead-based paint or hazards on the property
so that buyers can make an informed decision and be alerted to any potential health problems in the
future. If you are buying older housing or such housing is being donated for ministry use, be sure to
obtain the lead-paint notifications. https://www.epa.gov/lead/protect-your-family-exposures-lead
18
___ Sarbanes/Oxley Act (15 USC Section 7201, et seq)
This federal law applies to profit-making U.S. corporations. The Act increases the accountability of
corporations to the IRS and to the general public. The U.S. Congress continues to consider
proposals to make U.S. nonprofit organizations more accountable. There will likely be similarities
between the proposals and the Sarbanes/Oxley Act. New accountability laws are expected to be
adopted for nonprofits. Here are three things that your church and Christian school can do to get
ready:
(1) Be sure that your school board addresses conflict-of-interest issues by board members. ACSI
recently published an article along with two sample conflict-of-interest forms that nonprofit boards
could use for this purpose. The forms should be filled out by board members on an annual basis.
(2) Adopt protection for “whistle blowers.” Your organization needs a policy that clearly states that
any employee that brings to the administration or board information about perceived wrongdoing in
the school or by the school’s business practices be protected against adverse job discrimination by
making such a report.
(3) The school board needs to establish an audit sub-committee made up of some of the board
members. Since this is to be an independent committee that checks the finances and the financial
integrity of the organization, no school employees should serve on this committee. Each of these
three items is expected to be required in the expected new laws for nonprofit organizations. Why not
get a head start on them and seek voluntary compliance? All three ideas make good sense.
Transportation Issues
___ Highway Safety Act of 1966 (23 USC § 401 et seq.)
The regulations written under this statute include guidelines for “Pupil Transportation Safety” (23
CFR Part 1204.0, Guide 17) that recommend standards for mandated state highway safety
programs including the identification, operation, and maintenance of buses used for carrying
students.
A “school bus” is defined as a motor vehicle designed for carrying more than 10 persons, including
the driver when it is used for purposes that include carrying students to and from school or related
events on a regular basis, but does not include a transit bus or a school-chartered bus.
Every school must ascertain the specific requirements for buses imposed by the state in which the
school is located. The standards vary from state to state.
___ Commercial Motor Vehicle Safety Act of 1986 (49 USC § 31101 et seq.)
A driver of any vehicle weighing at least 26,001 pounds or passenger vehicles designed to carry 16
or more passengers including the driver, must have a commercial driver’s license (CDL). There are
no exceptions in this law for churches and private schools.
S-Endorsements Required for School Bus Drivers. A school bus driver with a commercial
driver’s license (CDL) must obtain the “S” or school bus endorsement on the CDL. It is required for
all individuals driving buses whether the bus has students on board or not. The “S” endorsement
includes a driving skills test and a knowledge test that covers procedures for loading and unloading
children, using emergency exists, and traversing highway-rail grade crossings. Drivers of children
and/or adults must also have a “P” (passenger endorsement). Please check with your DMV or state
police offices for more information.
___ Motor Vehicle Safety Act of 1994 (49 USC § 30101 et seq.)
If the school purchases a new bus, it must meet the standards of this law and its regulations.
19
Under this law, a “school bus” means a passenger motor vehicle designed to carry more than 10
passengers, including the driver, and used to transport school students to or from school or an event
related to school. Vans need to be ordered from the factory with the “school bus package.” Use of
vans for school transportation that are not “school bus equipped” increases your school’s liability if
the van is involved in an injury accident.
___ Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005 (109 P.L. 42;
119 Stat. 435 § 7259(b))
Congress Bans School Purchase of 11 to 15-Passenger Vans
At the end of July 2005 Congress passed and the President signed into law the “Safe, Accountable,
Flexible, and Efficient Transportation Equity Act of 2005” (H.R. 3). Section 7259(b) bans the
purchase, rental, or lease of nonconforming 15-passenger vans for school use” effective
immediately. H.R. 3 states that a school “may not purchase or lease a new 15-passenger van
[which is defined as “a vehicle that seats 10 to 14 passengers, not including the driver”], if it will be
used significantly by, or on behalf of, the school or school system to transport preprimary, primary,
or secondary school students to or from school or an event related to school.” Postsecondary use is
not banned by H.R. 3.
The only kinds of vans that are in compliance and can now be purchased for school use are those
that have been converted to comply “with motor vehicle standards prescribed for [1] school buses
and [2] multifunction school activity buses.” This means that a van must meet all the federal motor
vehicle safety standards for school buses (such as yellow in color, lights, stop arm, etc.) or comply
with multifunction school activity bus law (which can be any color, but must meet all requirements in
the school bus crashworthiness standards, crash avoidance safety standards, and all post-crash
school bus standards).
If your school had already leased or purchased a 15-passenger van prior to the enactment H.R. 3,
the new law does not apply to such a vehicle. But remember that several States have already
banned these vehicles. Note also that such a law will make it more difficult to insure a 15-passenger
van for school use.
https://www2.ed.gov/about/offices/list/oii/nonpublic/transportation.html
___ Federal Motor Carrier Safety Regulations (49 CFR § 382, 383, 387, 390–399)
The transportation of students by a private school that owns or leases a bus for an extracurricular
activity, such as an out-of-state field trip, is subject to these regulations.
The transportation of preprimary, primary, elementary, and secondary school children to and from
school is not subject to these regulations.
___ Omnibus Transportation Employee Testing Act of 1991 (49 USC § 31306 et seq.)
This Act requires alcohol and controlled substances testing of operators of commercial motor
vehicles designed to transport 16 or more passengers, including the driver. Testing is required for
preemployment, reasonable suspicion, random, and post-accident situations.
All drivers with commercial drivers’ licenses must be tested under this Act.
In addition to the testing program, employers must (1) adopt a policy on the misuse of alcohol and
use of controlled substances; (2) notify employee drivers of the required alcohol or controlled-
substances testing; (3) provide educational materials that explain the testing requirements and the
employer’s policies and procedures with respect to meeting these requirements; (4) develop referral,
evaluation, and treatment policies; and (5) maintain records of the alcohol misuse and controlled-
substances use programs and assure the confidentiality of those records.
20
State or Local Issues
___ State and Local Codes
The school must be in compliance with state and local building codes, and fire, safety, health, and
immunization regulations.
___ State Sales and Use Taxes
Forty-five states have such taxes, but not all states provide a sales tax exemption to private schools.
In some states, the law applies to out-of-state purchases of textbooks, supplies, and buses.
___ Personnel Files
No federal law gives employees the right to examine their personnel files, but many state laws do.
Determine whether there is a state law and its requirements.
___ Termination Pay
Most states are very specific on how quickly an employer must pay a terminated worker. Failure to
follow the law can lead to state penalties or to monetary judgments against the employer if sued by
the departing employee.
___ Child Care Licensure
The school must arrange for appropriate licensing of its day care or other type of early child-care
program if it is required to do so by state or local law.
Almost every state requires the licensing of programs if the participants are five years of age or
younger. The usual exception is a kindergarten class that is part of a primary or elementary school.
For information, go to https://childcareta.acf.hhs.gov/licensing
___ Teacher Certification
If required, the school must be in compliance with state requirements regarding teacher certification.
Most states do not require private school teachers to be state certified or licensed to teach.
___ City Zoning
The school must secure the city zoning necessary to operate legally at its location.
___ Minimum Wages
The school must be in compliance with state minimum-wage laws. More than half of the states have
a higher minimum wage than the federal minimum wage.
___ State Labor Posters
Posters required by state fair employment and child abuse reporting laws are to be posted for faculty
and staff. To find what your state requires go to http://www.dol.gov/whd/contacts/state_of.htm.
___ Child Abuse Regulations
• State-required background checks must be conducted.
• State-required fingerprinting must be done.
• Any state-required signed statements by staff acknowledging familiarity with the abuse
law (e.g., CA) must be executed.
___ Anti-Harassment Policy
The school is to adopt and post clearly worded anti-harassment policies for its students, employees,
and other adults as mandated by several states.
21
___ Workers’ Compensation
State law determines the extent to which workers’ compensation benefits are payable to an
employee who is injured while in the course and scope of employment or while advancing the
employer’s business and when such injury is related medically and causally to that activity.
An employer should have a reporting procedure for work-related injuries. A plan should, at minimum,
include: (1) a written procedure for employees to follow when reporting work injuries; (2) notice to
employees through orientation materials, employee handbooks, or manuals; and (3) designation of
persons to whom injuries are to be reported.
___ Record Keeping
Arrangements must be made to keep and care for student records after students graduate or leave
the school. Transcripts must be kept “forever.”
___ Personnel Records
Applications of individuals not hired by the school are to be kept for three years. Applications and
personnel materials of employees are to be kept a minimum of seven years following their
termination/retirement.
___ Appropriate Liability Insurance
The school must maintain adequate property and liability insurance policies. [Note: Many states
have regulations that mandate minimum amounts of insurance for educational or child-care
facilities.]
Notice: This article is designed to provide accurate and authoritative information in regard to
the subject matter covered. It has been provided to member schools with the understanding
that ACSI is not engaged in rendering legal, accounting, tax, or other professional services.
If legal advice or other expert assistance is required, the services of a competent
professional should be sought. Laws vary by jurisdiction, and the specific application of laws
to particular facts requires the advice of an attorney.
Association of Christian Schools International
731 Chapel Hills Drive
Colorado Springs, CO 80920
Phone: 719.528.6906
ACSI.org
