By Andrew McIntyre

Law360 (October 5, 2020, 3:17 PM EDT) -- The University of Maine's two top lawyers recently chatted with Law360 about the ongoing challenges of COVID-19 testing and also addressed the challenge of de-densifying dorms as part of a series of conversations Law360 is having with top college and university lawyers as students are in the midst of the fall semester.

General counsel Jim Thelen and assistant general counsel Sara Mlynarchek said that while the university has been aggressive and proactive in its testing regime, many testing-related questions remain. And since students are on campus for the fall semester, the university spent significant time and resources reconfiguring dormitory space, Thelen and Mlynarchek said.

This is the third in a four-part series of conversations with college and university general counsel to discuss the wide range of present legal issues as students begin the fall semester amid the coronavirus pandemic. This interview has been edited for length and clarity.

I read recently a report that there are now no known COVID-19 cases in the University of Maine system after I think more than 14,000 asymptomatic tests. I'm wondering about testing and what your role has been through all the decisions regarding testing.

Thelen: I am the system general counsel, and our system is comprised of the seven public universities in Maine. In my role, I'm also chief of staff to the chancellor, who is the chief executive of the system. So I had more of an oversight role relative to working with the chancellor, our systemwide emergency operations center teams and committees.

As an advisory body to that we had established, our chancellor charged what we called the University of Maine system Scientific Advisory Board, which was a board of six professors split between the University of Maine, our flagship research institution, and the University of Southern Maine in Portland. That consisted of a panel of neurologists, epidemiologists, microbiologists with specialties in contacts transmission, surface transmission of viruses. And then public health modeling experts across this group of six people. And then, of course, our financial people, because we needed to understand what financial resources could we commit to a testing effort. We decided on an aggressive number.

We wanted to do an aggressive series of testing and we asked our scientific advisory board to give us their recommendations for how to deploy that testing in a way that would maximize two things. Well, minimize one and maximize another. Minimize the likelihood of virus introduction into our university communities by people returning to campus. But then to maximize our ability to control spread if we did have cases and to understand what sort of prevalence there might be of the virus in our university communities through a series of ongoing testing, which would be random in nature. So that really informed our strategies.

Sara was the point person for the Emergency Operations Center teams and the scientific advisory board and then some other related committees that we had set up advising on residential student operations and other matters of that sort. So once we had developed the overall testing strategy, the execution and implementation and planning of that effort before our students came back, Sara was advising, on a day-to-day basis, the random legal issues that would come up as those groups went about developing their plan.

Sara, why don't you talk about some of those these legal issues that have come up.

Mlynarchek: Some of the questions that we were presented with and worked through the answer to were things about how are we going to handle testing? Is it mandatory versus [voluntary]? And for those individuals who, for whatever reason, may not want to be tested, how would them not having a test risk the safety of the rest of our campus? If there were any [Americans with Disability Act] concerns? If someone wasn't able to have a test, how would we be able to manage that? For us, thankfully, we have more than one testing option, and so we were able to work through any of those issues as well.

Then we thought a lot about the state's civil orders. And this did vary over time. We have certain states that are exempted from quarantine for those individuals coming into the state. And so for students who are from out-of-state coming in, what state are they coming from? Would those students be required to test or not? Some of that is dependent on if they would be living in the residence halls or if they would be living off-campus. And then while it may not even seem to be a legal matter, for those students who were living on campus or who are currently living on campus when they first come in, how are we going to get them tested and quarantined at the same time, but make sure we are providing for all their basic living needs?

What were the summer months like for both of you in terms of discussions with the university on the question of what the fall should look like, whether learning should be on-campus, whether it should be online, whether should be a hybrid? What were some of the major points of discussion that you were involved in on that topic? I'm wondering what that looked like from your side of the table and what were some of the legal questions that you are called on to weigh in on?

Thelen: So early on, when everyone hoped that the pandemic could be wrestled under control, we knew that as families and students would be making preliminary decisions about whether they would go to college, whether they wanted to have an in-person experience, and then which colleges they would choose to go to, it would be important to signal that we had confidence that we could come up with a plan to have safe in-person instruction.

I believe it was the end of April, we made our first announcement that we were forming what we call the Safe Return Planning Committee, which again, was an overall systemwide committee that then had subcommittees responsible for various types of operation. Primarily they're talking about facilities, planning for a testing strategy, planning for what kind of social distancing requirements we would have.

An immediate and obvious and ongoing legal question for us has always been, How do we stay in compliance with the state's civil guidance, the governor's executive orders, other guidance from the Maine [Center for Disease Control & Prevention]. And then, to the extent it was relevant, broader national guidance either from college and university associations, if there's an American public health colleges and universities association that was issuing guidance.

We noticed early on, too, I think by May, that some of the states in New England — Connecticut and Massachusetts among them — were releasing white papers. About how higher education might be able to return to the classroom and what would be the public health and safety protocols that they should consider in doing so. So we led an effort through the chancellor's office to invite leaders of all of the high-rated institutions in Maine, public and private, to come together to form a working group that would develop our own series of recommendations in Maine, which would be then offered to the state of Maine and the governor's office and the Department of Education.

We knew frankly they were overwhelmed. They were trying to manage an entire state. Maine in particular was trying to imagine how to have some semblance of a safe tourist season. Maine is a popular place to be in the summer and that was important to the state. And we honestly wanted to take some pressure off the state by demonstrating through, for example, our scientific advisory board, that we could make recommendations for how to come back safely, [and allow] the state, where it felt it was appropriate, to give it a stamp of approval.

Through it all, I think the thing that we left out of the committee structure was really the academic planning, because we wanted the universities and their provosts and their faculty to imagine how to carry on. We, like almost all higher ed institutions in the country, went remote quickly in the spring when the pandemic really took hold. So we knew that, of course, we could just keep doing that, but we questioned whether that would be a quality experience.

All of the surveys of the high school college-bound population suggested if it was possible, they wanted to have some kind of classroom experience. So we really challenged our faculties and our academic leaders at the universities to come up with their best quality remote options that also considered the possibility of having some in-class opportunities. And then you layer on to that the state civil public health guidance about social distancing and facemask requirements.

So, through it all, I operated as general counsel in working with the chancellor's office, and then Sara [worked] as a point-to-point, day-to-day adviser on specific legal matters such as the face covering requirements. How did we do that? What were the ADA issues there? It was really an all-hands-on-deck effort to get us to where we are today.

I'm wondering about student housing and how you've addressed that question. Have you de-densified dorms? Have you put in other social distancing or other precautions for on-campus housing?

Thelen: From a planning standpoint, through our Emergency Operations Center and our scientific advisory board, we had a committee that we called the residential advisory board that works through those issues. And we did lower our density by 20 to 25%. In previous years in a nonpandemic time, we've had some dorms that were oversubscribed and they have had triples in rooms. We automatically took that off the table. No triples. And then we determined what would be an appropriate amount of isolation and quarantine space based upon our modeling, based upon our science advisory board's recommendations.

Mlynarchek: In our common spaces, we removed the couches and more lounge-like pieces of furniture and instead placed desks and chairs appropriately 6 feet or more apart. One, so these could be easily cleaned. But two, where normally we would want to encourage interaction with lots of students together, in this case we don't want to encourage that interaction inside. To try and make these spaces where they have a place to study safely, but we're not going to have a group of 10 students hanging out on the couch watching TV.

We spent a lot of time understanding how many students we could have on a floor with community bathrooms. Some of our residence halls and some of our campuses have suites, which are limited to two or three people sharing a bathroom or two to four people sharing the bathroom versus the traditional residence halls we all know from our college days, where we've got a floor sharing an entire bathroom. And how do we manage those? What are the cleaning schedules going to be for those community bathrooms? Do we need to have a shower schedule for the residents living on the floor? I felt like every time we answered one question, a more detailed technical question came up the next time.

How do you decide whether to handle matters in-house or consult with an outside law firm? Can you give me a sense of the size of your in-house legal department? How many lawyers you have? And can you give me a sense of which outside law firms you work with?

Thelen: Our institution overall, all seven universities combined, has 30,000 students spread among them. I think we have a reasonable-sized general counsel's office for that operation. With me as general counsel, we just hired a deputy general counsel, which reflects the fact that I only have a partial amount of time that I spent as general counsel managing legal affairs because I also share the role of chief of staff in the chancellor's office. So I consider myself part-time. And then we have four full-time attorneys, including the new deputy general counsel Sara, and then two other attorneys. We handle all legal matters for the seven universities and system as a whole.

Our primary firm with whom we've had a long relationship dating back to the founding of our system in 1968, is a firm in Portland, named Bernstein Shur. That reminds me, because I was thinking here, we really have not tapped outside counsel in any way significant way for our pandemic planning and response. But even as I say that, there was one specific area where we relied heavily on that firm, and that was to help us put together the employment policy to manage the Families First Coronavirus Relief Act, because that came out and very quickly created new forms of employee leave and new employee benefit entitlements.

At that time we were very quickly moving toward remote work, trying to figure out what happens with employees who can't perform their work on a remote basis, or might need leave or might have school and child-care issues. Everything that is addressed under that Families First Coronavirus Relief Act, we brought in outside counsel with employment expertise to help us through that.

I also wanted to ask you about the state of Maine. You mentioned the governor's office, guidance from the state. Can you talk a little bit more about what are the key points of guidance from the state that have applied to the university setting?

Thelen: Early on, and this came out of discussions with our governor's office, our flagship research university was getting a number of requests early, in March, from state health care organizations because there was a shortage of hand sanitizer. And the hospitals were trying to stock up. Their supply chains were running tight. So they reached out to the university in our advanced manufacturing center and our other chemical labs, asking if they could tap into our supply chain, if we could manufacture hand sanitizer for them. We started doing that.

As a result of that, we were getting other requests. Could some of our people who weren't able to work because of remote work, could they volunteer and help in the health care systems? Could we do other things that would help support the state's response to the pandemic? Well, as a result of that and conversations we had, including through the general counsel's office with the governor's office, the governor's legal counsel, and the Maine Emergency Management Agency, we ended up signing a broad partnership agreement whereby the Emergency Management Agency designated the University of Maine system as an agency of MEMA, which gave us the state's immunity as we started doing this work in public service to the state.

So we're developing hand sanitizer. We use several of our facilities that were emptied out by sending our students home to provide meal service for first responders. To be homeless shelters because of social distancing requirements that made the need for more occupancy and space for homeless communities. We did all of that under the guise of our partnership agreement with the state Emergency Management Agency.

The governor here issued fairly regular orders regarding business operations. What was considered to be an essential business during the early stages of the lockdown. And we did basically have a lockdown and shutdown in Maine. There were discussions with the governor's office looking at national guidance on what was considered to be essential research activity, because we had a number of educational and research activities that we needed to find out how to continue but in a remote way, in a socially distanced and in a safe way.

So, we have ongoing communication with the governor's legal counsel. And then with just a handful of commissioners of the leading state agency, the Department of Health and Human Services, under which the Maine CDC falls, and then also the directors of the Maine CDC and the Maine Emergency Management Agency.

I guess that's the advantage of Maine being a smaller state. That was not a large community for us to work with. And they are people we know. And there was a lot of trust. It was the advantage of the Emergency Management Agency partnership agreement we entered. And although obviously, it was stressful times, a crisis of a national global pandemic, we've really worked well together.

I'm wondering what the next month will look like from where the two of you sit. Are you finding you're still addressing various matters that are coming up this semester? Are you planning for the spring semester and trying to figure out what that will look like? Is it some of each? What does your work look like right now, and what do you think the next month will look like for you?

Thelen: We are still on a daily basis dealing with ongoing issues. Our testing program had a series of stages. The return testing I described was mandatory asymptomatic testing for everyone coming from out of state. For everyone living in the residence halls. And then various special populations that might be at greater risk. We're now entering new phases of testing where every 10 days or so we're going to be doing random testing of essentially 10% of our population that has any on-campus, in-person activity, whether it's faculty, staff, students. And there are memorandums of understanding to negotiate with our labor unions about how that testing will occur.

There are ongoing issues about how do we adjust when the state guidance and civil authority guidance adjusts? Do we also adjust or do we have a higher level or a different level of guidance? We are just starting to talk about the spring. We're under no illusion that we won't see some additional cases as our testing continues. Our hope, our optimistic hope, is that we can continue on with our semester as we've started it. We feel like we have a good plan. And, very frankly, if we get to Thanksgiving and we were able to conclude our semester the way we planned it, we're going start the spring semester with the same plan. 

Sara, do you want to weigh in?

Mlynarchek: Yeah, I would echo what Jim says, in that there are still definitely questions around testing. We're working through the rounds of phase three. In terms of planning for the spring, our same groups and subcommittees are starting to look back and see what have we done. What did we do that worked really well and what did we do that could have had some improvements? And see how we can modify and refine our plans moving forward for the spring semester.

Thelen: We mentioned earlier that at the moment, we have no known COVID cases in our community. We likely do have some cases that we have not identified in our rounds of testing. We want to be very clear and vigilant and have the appropriate communication strategy that we can't let our guard down. We have to keep strictly following all of our facemask requirements, our hygiene and sanitizing requirements, our social distancing requirements. And not get lax. And we're under no illusion that we won't deal with more cases as the semester goes on.

--Editing by Bruce Goldman.

This is the third article in a four-part series of conversations with general counsel at colleges and universities as the fall semester begins amid the COVID-19 pandemic. The second article featured the general counsel at Duke University and the final article is a conversation with Kansas State University's general counsel.

For a reprint of this article, please contact reprints@law360.com.