How to Form a Coronavirus School Pod: Legal and Practical Considerations

With many schools going online for the 2020-2021 academic year, parents and guardians are scrambling to find a way to continue working while children learn from home. A popular potential solution that has emerged is the "pod": a small group of children that meets regularly to learn and socialize together until schools are able to safely resume in-person learning.

Because pods are hyperlocal and, in a sense, unofficial, there's no one-size-fits-all guidance on how to organize them—or even what to call one ("pandemic pod," "homeschooling pod," "micro pod," and "school pod" are among the options). No matter what you call your pod, though, forming or joining one is going to require some careful planning.

Groups entering into a pod arrangement for the upcoming school year would be well served by openly discussing, negotiating, and coming to a consensus about how their pod will operate. And, considering the stakes, the parties to the pod should put their agreement in writing.

Pods should familiarize themselves with all current emergency orders in their area to make sure that gatherings of the size and type planned are allowed. Because state and local shelter-in-place and other emergency orders change frequently, you'll need to keep apprised of any new developments—and be sure to follow these laws when participating in pod activities.

While no one can anticipate all the circumstances that can arise, here are some topics to discuss with fellow pod members and consider including in a written pod agreement.

Goals and Purpose of School Pods

Different pods will have different goals. For example, parents of older children might be looking for a way to support and supervise their teens' academics, while parents of younger kids might be seeking a social outlet for their energetic grade-school students.

A pod likely won't last long if its members don't have a common vision for the group in the first place. Consider having member parents or guardians write down their goals, and make sure the families you join up with are on the same page as you. If the goal of a pod is, for example, to track a certain elementary school's curriculum and milestones, make sure the pod agreement states as much.

School Pod Structure

Structuring the pod—for example, developing a schedule, deciding who will supervise or teach, and establishing a meeting location—will undoubtedly take effort for pod creators. Here are some ideas about how to formalize the basics.

Finalizing Members

Forming a pod won't be entirely unlike a marriage: Members are going to be spending a lot of time together, managing logistics, and dealing with each other's children. As a first step, you'll want to be prepared with basic information should an emergency arise. Consider creating a shared contact sheet that includes:

• children's names and birthdates
• parent/guardian contact information (including cellphone numbers)
• back-up contacts if the parents or guardians aren't available
• basic medical information, such as known allergies and medications
• contact information for each child's doctor, dentist, and preferred hospital, and
• any other information a parent or guardian considers helpful or necessary for someone watching their child.

This information could be integrated into the written pod agreement, kept in a document that's handed out to all members, or shared via email or a document sharing service such as Dropbox or Google Docs. The information should also be in the hands of any third party who might have contact with the pod, such as a supervisor or tutor.

Scheduling Meetings

A pod will quickly fail if its members can't adhere to a regular, predictable schedule. You'll want to arrive at a decision regarding:

• the start date
• the days of the week that the pod meets
• the time of pod meetings (when is drop off and pick up?)
• vacation days, and
• a policy for weather delays or cancellations.

Some pods might even want to decide on a schedule for how instruction will flow during the day—for example, will there be designated times for breaks, naps (if applicable), snacks, and lunch?

Of course, many kids will simply be "attending" their normal school, in which case a certain amount of structure will be predefined. For example, a student might have mandatory meetings to start, at the middle of, and to close each school day. And the teacher might lay out the specific activities for each day.

Securing a Location

It's best to decide on a predictable location or set of locations where pod learning will occur. Here are some possibilities:

• one pod member's house
• a rotation of members' houses
• a currently vacant commercial space
• a park or playground
• a nearby open space
• a sheltered outdoor area, and
• the supervisor's home or office.

No matter where you choose to meet, pod members will have to resolve issues such as how the children will use the space, who will have access to it, and whether the group will ever go to other locations. Questions to ask about any space include:

• What other people will be there? Extended family? Siblings? Housekeepers? Members of the public?
• Will dogs, cats, or other pets be present?
• What areas or rooms will be off limits?
• Is the location appropriately equipped or childproofed for the group's age or special needs?
• Is it legal under local and state law—including any emergency orders—for the group to meet at this location?
• Are there any zoning restrictions that might prohibit the space being used in this manner?
• Who will be cleaning and disinfecting the space? Using what methods? How often?
• Are there hazards the group should be aware of?
• What type of ventilation, heating, and air conditioning does the space have?
• Will the group need to sign a lease, get a permit, or make a reservation to use the space?

Once you've narrowed the list of possible locations, consider any related questions that the specifics of the space might prompt. For example, if you plan to rent a location, you'll need to make decisions about who will be in charge of making payments, as well as who will be personally named in (and liable for any violation of) the lease.

Enlisting a Supervisor or Instructor

All pods will need to have a responsible adult with the children at all times. Possible supervisors include parents, guardians, and hired tutors or educators. When deciding on supervision, think about the following:

• Will there be more than one supervisor? If so, what will their schedules be?
• Will the group run a background check on all supervisors?
• What would disqualify someone from being supervisor?
• Will the group require the supervisor to have certain experience, licensure, or certification?
• Will the supervisor have to provide references? What will you ask the references?
• Will the group have the supervisor sign a contract?
• If the supervisor will be paid, how much and on what schedule, and who will be in charge of paying?
• If the supervisor is paid, is the arrangement legal under applicable federal, state, and local employment laws? Is the arrangement legal under other laws that might apply, such as in-home employee or contractor laws?
• Will the supervisor have sick or vacation days?
• In case the supervisor ends up not being a good fit, how will the group decide whether to remove the supervisor? How will a replacement be found?
• Will the supervisor have the ability to discipline the children? What are your boundaries and rules about discipline?
• How will the group monitor and supervise the supervisor?

Many considerations like those above apply even if an unpaid parent or guardian serves as the supervisor. For example, what will happen when a parent-supervisor has another commitment to attend to? Or, if that supervisor has to pay for something for the pod, how will reimbursement be handled?

And, although it might be a difficult topic to bring up, groups should strongly consider getting background or criminal record checks for all adults involved in supervision—even parents and guardians. If another parent or guardian objects to such scrutiny, perhaps you weren't meant to be in the same pod.

As with the other topics covered in this article, whatever decisions you make, make sure they're covered in your written pod agreement. For example, you could name the supervisor in the agreement and even have the supervisor sign it. (Or maybe you'll set up an independent written agreement with the supervisor(s).)

Developing Curriculum

If your pod plans to follow along with your school district's curriculum, this section of your agreement could be as simple as stating something like, "We will follow the curriculum for Ms. Parker's third grade class." If your pod's planned curriculum deviates from your district's (for example, by blending one or more school's curricula or using a fee-based, online curriculum), you'll want to describe the plan in as much detail as possible.

Consider creating a check-in schedule to evaluate how things are going. Making an agenda for each check-in might be helpful, along with an agreement on what milestones must be met, if any. In the event that some members of the pod believe the curriculum isn't working well, think about how the pod might agree to change the curriculum—as well as what curriculum might replace it.

Whatever the curriculum, don't forget about supplies. If children need expensive or technical supplies such as computers, the pod should discuss specifics: What products are needed? Who will pay for the supplies? Where will the supplies will be stored when the pod is not in session?

The Pod's COVID Plan

Although home-learning pods might pose less exposure to other people than in-person school, some risk of coronavirus is virtually inescapable—especially as pods are forced to meet indoors as the weather grows cooler. As we are all painfully aware, there are still many unanswered questions about COVID-19.

Pods should have plans in place to address at least the identifiable complications the virus could pose, and make serious attempts to limit the possibility of transmission. Look at the following categories in order to create a COVID plan of action. (And remember: Get your rules in writing.)

Each Family's Commitment

If you're still evaluating other families to bring into your pod, it might be a good idea to discuss each family's relative risk tolerance and behavior profile regarding COVID. The Texas Medical Association released a graphic showing the relative COVID risk of many common activities that could facilitate these discussions.

Consider having a set of guidelines that each family participating in the pod agrees to follow. For example, families might agree that a child will not attend pod meetings for 14 days if a family member has flown on an airplane, or that families will not socialize with people outside of the pod group. Also, determine whether members will be tested for the virus before the pod begins meeting, when members must stay home, and what exactly to do about suspected infections.

Finally, it's worth addressing each family's vaccination policy. Will the pod require everyone to get a seasonal flu shot? Will the pod require everyone to be compliant with the CDC's (or another organization's) recommended immunization schedule? Will the pod require everyone to show proof of vaccinations?

Precautions to Take for Pod Activities

Everyone has their own definition of "clean"—be sure that your pod members have the same expectations as you regarding appropriate COVID-19 sanitization measures. It can't hurt to establish a schedule for thorough cleaning of the pod's meeting location and supplies. You could also require everyone to wash their hands or use hand sanitizer at certain intervals during the day. (Some organizations are even requiring attendees to shower at least once a day before coming in to a physical location.) You might want to designate certain products that should be used for cleaning (such as those approved by the EPA for use against COVID)—but be sure to account for possible shortages.

Other considerations:

• Will everyone be required to wear a mask at all times? What kind of mask? How will members have to clean them or switch them out?
• Will there be COVID-19 health screening at each pod meeting? What will it consist of, and what are the criteria and plan for a child staying home or being sent home?
• What efforts will be made to physically distance children?

How to Deal With External COVID Factors

For better or worse, recommendations about and information regarding COVID change daily. Your pod should have a plan in place for dealing with situations such as:

• The development of a vaccine, medicine, or other medical advancement that could lessen the effects of COVID even if not eliminate it entirely.
• The development of a vaccine, medicine, or other medical advancement that appears to cure or immunize against COVID.
• The partial or complete re-opening of school, with the possibility of at least some in-person attendance being mandatory.
• A mutation of the virus that makes it more dangerous.
• A widespread outbreak in your area.

You might also want to consider a method for sharing reliable, updated virus-related information. Perhaps one parent or guardian could agree to be the group's researcher and distribute noteworthy news or developments to the group.

Governing the Pod

The workings of a pod can be more complex than might be immediately apparent. Here are some points of consideration to help keep things moving smoothly.

• Decision making. How will the pod make decisions about amending its practices? Will all parents and guardians be required to participate in discussions? Will majority rule or must decisions be unanimous? Must votes be in writing? How long will members have to vote? What if a member is too sick to participate?
• Removing members. What if you get a "bad apple" in your pod? How can the person be removed? What does a member have to do to resign from the pod? What do you do if someone just stops participating? Who will be on the hook for paying any expenses owed by a member who leaves?
• Pod duration. How long will this pod exist? Should it be reevaluated monthly? Each semester?
• Disbanding the pod. What circumstances (external and internal to the pod) will warrant ending the pod? How will the pod formally end? What happens if the pod ends earlier than planned and there are outstanding costs that can't be recouped?
• Backup plan. Does the pod want to create a backup plan regarding any part of the agreement?
• Dispute resolution. If there's an argument that the members cannot resolve on their own, should the group agree to engage a mediator or another outside party to assist? If members are evenly split, will a coin flip decide the matter? What happens if a pod member (or members) propose an action that is illegal under emergency (or other) rules? Do the members agree to not sue one another in the event there is a dispute that can't be resolved?
• Does the pod want to take measures, such as making a monetary or in-kind donation to an organization providing assistance to low income families affected by the pandemic? A donation could be geared toward issues such as school funding or the potential social inequality impacts of home school pods.

You can use the governance models of other organizations as a guide. For example, if a pod member belongs to an HOA with well-written bylaws, the pod could borrow or adapt some of those procedures. Or perhaps a pod member is on a board or in a leadership group of another organization that has formal governing policies the pod can use as a model.

Liability

State and federal laws vary regarding the enforceability of agreements to waive liability for injuries—some states even refuse to enforce any form of injury waiver. Whether a court would uphold an agreement among pod members to waive liability for any COVID-related injuries (or any other injury, for that matter) is unknown.

Should your pod wish to enter into a liability waiver, it's probably best to have a local attorney draft it. And, even if the pod members agree to waive liability, you'll have to take into consideration whether a waiver will apply to third parties—such as teachers or supervisors—that you expose to the pod.

Pod members—especially those who host pod activities at their home or another premises they control—might be liable for other, non-COVID injuries that could occur during pod activities. For example, a host of a pod could be liable if her dog bites one of the children or a child slips on an unsecured rug and breaks an arm. In some states, parents and guardians might also be liable for the acts of their minor children. To mitigate the risk of liability, pod members will need to discuss insurance coverage with each other and with their insurance providers, as discussed in the next section.

Insurance

Parents and guardians who decide to opt in to a pod should consider discussing their plans with their insurance providers. For many, that discussion will be about whether their homeowners' or renters' policy will cover liability that arises from potentially hosting a pod. An insurance broker might indicate that a rider or umbrella policy is necessary for coverage.

In addition, anyone who will be transporting other pod members in a vehicle might want to check whether their vehicle insurance will cover injuries that arise in the course of pod outings.

Pod members will want to discuss the coverage that each participant has in place. Some questions to address in discussions and possibly the pod agreement itself include:

• Will each member be required to have a certain level of insurance coverage in order to remain in the pod?
• If anyone needs to purchase additional coverage, will the pod members contribute to the added expense?
• Will members have to produce proof of insurance to everyone?
• What happens if someone's insurance is canceled?
• What kind of insurance is needed to cover a supervisor, tutor, or teacher?

A qualified insurance broker can help the pod come up with (and hopefully answer) all the insurance questions the pod should be addressing. The National Association of Insurance Commissioners offers guidance on finding an insurance agent; you can also ask other pod members whether they recommend any local insurance professionals.

Other Legal Factors to Consider

No contract—whether written or oral—is rock solid. You've probably seen enough legal agreements in your life to know that almost every one contains boilerplate legalese to cover unexpected developments. Due to the uncertainty surrounding this pandemic, pod agreements arguably must be even more flexible than other contracts.

In an effort to anticipate the unexpected, your pod should consider:

• giving everyone the chance to independently consult with an attorney to discuss the pod and any written agreement
• agreeing in writing on what will happen if the pod agreement is deemed illegal by local, state, or federal authorities
• adding a clause stating that everyone in the pod agrees to adhere to federal, state, and local social distancing, gathering, and emergency orders and laws
• adding a clause stating that everyone in the pod agrees to adhere to all relevant zoning, licensing, and childcare laws, and
• adding a clause stating that everyone in the pod agrees to cooperate with authorities and health officials if a member of the pod tests positive for COVID.

One thing is certain: Parents and guardians attempting to form pods or otherwise address educational challenges caused by the pandemic are trying to do what's best for their children and family. There's a lot at stake, and constantly changing conditions complicate matters.

If joining or forming a pod is your best option, don't jump into it without a strong plan in place. Talk to your co-pod members about sharing the cost of discussing the pod's plans with an attorney—even if all you can afford is an hour-long consultation where everyone joins in remotely. An attorney can help you understand and comply with laws and emergency orders that might apply to your pod, as well as review or even draft a written pod agreement.