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INSIGHT: Do You Really Need a Contract for Your First Grader’s Learning Pod?

Sept. 22, 2020, 8:01 AM

Virtual school? Hybrid school? Tentative in-person school? Parents hoping to find a measure of stability in the Covid-19 crisis have been forming “Learning Pods” or “Pods” to facilitate, complement, or in some cases, completely replace their children’s traditional brick-and-mortar school day.

And whether parents have been presciently planning their Pods for months, or scrambling as the reality of back-to-school 2020 hits, a time-out to consider their legal implications may prevent additional anxiety in this environment of unknowns.

Forming the Pod

The Learning Pod can take several different forms. Some parents are creating LLCs and filing paperwork with their state’s secretary of state, thereby limiting their personal liability. Other families are forming unincorporated associations and adopting by-laws. Still others are taking a much more informal approach by simply agreeing verbally to hire a tutor for the Pod.

Regardless of the type of entity parents choose, certain state laws may apply. Pods hiring teachers to create a curriculum separate and apart from their school may be subject to state homeschooling laws.

In addition, some states have adopted mandates that apply specifically to Learning Pods. For example, Massachusetts Gov. Charlie Baker (R) issued an order requiring “Remote Parent Learning Cooperatives” to include no more than five families, and if the children are under age 14, there must be an unpaid caregiver present in addition to any hired tutor (who may teach only during normal school hours).

Family Pod Agreements

Families “podding” together may be long-time neighbors or strangers connecting through social media. A written set of mutually agreeable guidelines—whether structured as an LLC agreement, by-laws, or simply bullet points signed by all parties (a Family Pod Agreement)— is essential to address finances, safety, dissolution, dispute resolution, and health and safety expectations.

Each family’s cost contribution to the Pod should be specified. Will parents contribute one lump sum or monthly payments? What infrastructure costs and supplies are covered?

Can the family or families hosting the Pod in their homes each attest that they have proper homeowner’s insurance? Some Pods are even renting third-party space for sanitation reasons—who is responsible for this lease?

What is the Pod’s expectation if a family wants to leave—will the departing family be on the hook for costs unless a replacement can be found? Along those lines, the Family Pod Agreement should consider what will happen to the Pod if school resumes normally. Some Pods may want a full-year financial commitment, but others may want flexibility to segue back-and-forth between brick-and-mortar school and the Pod environment depending on local health guidelines.

Two other helpful clauses in a Family Pod Agreement are governance and dispute resolution. Pods will need to make ongoing decisions and may want to schedule a monthly meeting (Zoom, anyone?) to discuss both daily operations and the latest health information.

If there is a disagreement—say, on one of the Pod’s core health and safety tenants (discussed below)—how will it be resolved? Some Family Pod Agreements have language such that Pods will consult medical or legal counsel for any disagreements that have significant health, financial, or legal consequences.

Health and Safety Philosophy

A “Health Compact” may be the most essential part of a Family Pod Agreement. All parties will need to be clear on what happens if a teacher, student, or family member either tests positive for, or has a known exposure to, Covid-19. Pods may want to consult local health department guidelines as the baseline for their procedures.

Keep in mind the differing degrees of overall risk tolerance among families. Consider how to handle parent business trips, vacations, visits to grandparents, eating out at restaurants, or socializing with families outside the Pod.

Other health and safety issues to consider are when and where to wear face coverings, whether to conduct classes indoors (windows open at all times?) or outdoors (bring appropriate clothing!), sanitation of the “classroom” (who will clean?), and expectations around seasonal flu shots.

Some families are forming Pods precisely to ensure a strict safety environment, while others are more focused on supplemental learning. Discussing and codifying these issues is thus an important part of the process.

Teacher Agreements

Teacher agreements (Teacher Agreement) should set forth basics such as pay, term, and Covid health and safety expectations. The threshold question for a Teacher Agreement, however, is whether the teacher is being hired as an employee or an independent contractor—a nuanced analysis for which families should consult an accountant or attorney.

Very generally, if the Pod intends to pool resources to collectively hire the teacher, the teacher will likely be considered an employee, and the Pod will need to file the appropriate employment and withholding paperwork.

But if the teacher is contracting with each family individually (or is working with more than one Pod), the teacher may be considered an independent contractor. Because the teacher is being hired for personal services, and not as part of a family’s trade or business, the family likely will not need to issue a Form 1099.

Waivers and Releases

Finally, in both the Family Pod Agreements and Teacher Agreements, families and teachers may want mutual limitations on liability for injuries related to Covid-19. The enforceability of such releases and waivers will vary state-to-state and will be dependent on facts and circumstances.

Families should have an attorney look over any agreement that contains indemnification, limitation of liability, or release of claims language.

Are Learning Pods here to stay? On one hand, they allow for control and flexibility—parents may find security in the ability to pivot to an out-of-school option for reasons other than a pandemic, such as natural disasters.

On the other hand, for parents not used to homeschooling (the author included!), a safe return to school can’t happen soon enough.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Kathryn Beaumont Murphy is counsel at Saul Ewing Arnstein & Lehr. She co-chairs the firm’s K-12 Practice and is a member of the Higher Education Practice. Prior to becoming an attorney, she was a high school English teacher and a journalist covering higher education.

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