As many students begin the schoolyear without on-site instruction, the concept of in-home learning pods is gaining in popularity among parents and caregivers. A group of families may decide to jointly hire a tutor to teach an in-person curriculum or to help facilitate or supplement the online curriculum of a school that is unable to offer in-person teaching due to COVID-19. While learning pods may be appealing to parents who struggle with navigating online schooling, work schedules and childcare needs, parents should be mindful that there are potential liability issues relating to their participation in learning pods.
California has strict licensing requirements that govern the operation of childcare facilities. Unless the childcare provider is “license exempt” or the parents have formed a cooperative arrangement that complies with California regulations, parents could face civil and criminal penalties associated with operating an unlicensed childcare facility.
Parents also need to be mindful of current laws that dictate what it means to be an “independent contractor” in California. This becomes important as parents retain outside consultants, such as tutors, to provide in-home services. Workers who do not satisfy the stringent requirements set forth in recently enacted AB5 must be treated as employees and given all associated federal and state benefits, including overtime pay, meal and rest breaks, and paid sick leave. Employers must also carry workers’ compensation insurance to cover any potential workplace injuries that may occur, including contracting COVID-19. Earlier this year Governor Newsom issued an order providing that an employee who tests positive for COVID-19 is legally presumed to have contracted the virus in the workplace for workers’ compensation purposes.
While the office of AB5’s author, Assemblywoman Lorena Gonzalez, recently advised that tutors hired by parents generally qualify as independent contractors, the answer must be determined on a case by case basis. Otherwise, improperly treating consultants as independent contractors where the circumstances suggest that the workers are in fact employees, can expose parents to claims of employee misclassification. They could face liability for back pay, statutory penalties, and attorneys’ fees if found to be in violation of applicable law.
It is also important to protect against potential liability claims by guests who may become injured while visiting your property, including other parents. This includes ensuring that any homeowners’ insurance or general liability policies provide adequate coverage in the event of an on-site injury.
Parents should also be prepared to address any disputes that may arise relative to the management of their pods. There could be issues relating to the joint payment of outside consultants, potential disagreements regarding the retention and supervision of those consultants, and how possible changes in student attendance could impact the continuing payment obligations of the other pod members. Parents should also be concerned with implementing protocols that are aimed at minimizing exposure of COVID-19, both for the parents and students, but also for the consultants who come on-site. This could include the use of personal protection equipment such as facial coverings and the adoption of added hygiene and sanitation practices at the pod site. It is recommended that such protocols be reduced to writing.
Parents considering the use of a learning pod should ensure that their particular arrangement complies with applicable childcare and employment laws and takes measures to minimize the potential for liability overall. A properly drafted contract can assist in reducing liability exposure and also helps to ensure that all participants are entering into the arrangement with a mutual understanding of how the pod will be managed and how disputes will be addressed. As state and local regulations relating to COVID-19 continue to evolve, it is imperative that parents stay apprised of how new laws may impact their exposure. This includes monitoring local ordinances that prohibit individuals from congregating with individuals outside their own households, which have even resulted in the recent cessation of utility services for those found to be in violation.
 California Health & Safety Code § 1596.792 (Among the license exempt providers are “[a]ny family day care home providing care for the children of only one family in addition to the operator’s own children” and a cooperative arrangement in which parents rotate as caregiver without receiving payment for such services. A “coop” cannot include more than 12 students at a time.)
 California Labor Code § 2750.3
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