Kye Garcia was in the first year of teaching last school year when a COVID-19 infection led to three harrowing months in the hospital. The 27-year-old special education teacher in Springfield, Mass., is still undergoing physical and occupational therapy, along with regular medical tests to treat lingering effects of the infection, which include a paralyzed vocal cord and lasting lung damage.
Despite that, Garcia, who uses they/them pronouns, headed back to teaching remotely along with other Springfield teachers when the new school year began this fall. But as the district has considered moving to hybrid learning that would include some in-person instruction, Garcia has made clear that they do not feel safe returning to the classroom. They say the school system has been slow to guarantee they would have such an accommodation.
“I said that whenever we go back to the classroom, I can’t do it,” said Garcia. “No one should have to choose between their job and their life.”
For districts and anxious teachers and other school employees, however, there are a host of legal requirements to take into consideration in navigating what can be demanded when moving staff back into on-site schooling amid the still-raging crisis.
“Nine months into this, we are still in uncharted territories because of the pandemic numbers, the lack of federal leadership, and the lack of clear mandates for health and safety protocols,” said Alice O’Brien, the general counsel of the National Education Association, the nation’s largest teachers’ union.
Francisco M. Negrón Jr., the general counsel of the National School Boards Association, said, “The employment piece of reopening schools has been critical, whether a school district is in a collective bargaining state or a so-called right-to-work state.”
“School districts are taking the safety of their employees very seriously,” he said.
Applying the Laws
While COVID-19 has presented some unprecedented questions regarding district operations and employee rights, many of those questions are being resolved by applying existing laws and regulations with perhaps minor modifications to account for the pandemic.
“Some of those issues raise largely unprecedented factual questions under existing law,” said John E. Rumel, a law professor at the University of Idaho in Boise and the former general counsel of the Idaho Education Association. “Other issues pose relatively familiar factual scenarios under laws modified to address COVID-specific contexts.”
Rumel presented a paper on COVID-19 school employment issues earlier this month at the Education Law Association, a professional group for professors who teach education law and others in the field. Another presenter was Carolyn N. McKenna, a partner with McKenna Snyder LLC, an Exton, Pa., law firm that represents many charter schools in Pennsylvania.
“There are so many scenarios we’re seeing,” said McKenna.
“Communications, starting these conversations, is the key.”
Advocates on both the labor and management side suggested there was much common ground in a number of key areas of school employee rights during the pandemic. Among them:
Accommodations for disabilities—With many schools having reopened for in-person instruction, some educators have sought accommodations under which they may work remotely. Such scenarios are largely governed by the Americans with Disabilities Act of 1990, advocates say.
“The ADA is a minimum standard, and it is rather exacting,” said Rumel. “You do have to be a qualified individual with a disability.”
He says that in the midst of a highly contagious pandemic that is affecting people with underlying health conditions more severely, a teacher with an underlying health condition identified by the U.S. Centers for Disease Control and Prevention as putting them at more serious health risk would be considered to have a qualified disability.
Flynn points out that another issue coming up is school employees who don’t themselves have an underlying condition but live with a parent, spouse, or child who does. But employees would not be entitled to an accommodation because someone in their household was at risk, advocates said.
Also, while age has been a risk factor for COVID-19 complications, it is not a protected category under the ADA. And while another federal law, the Age Discrimination in Employment Act, aims to fight age bias, it does not include any provisions for reasonable accommodations based on age.
Flynn says that even though some employees might not be covered by the ADA, “that doesn’t mean there can’t be a conversation between the employer and employee.”
Family and medical leave—The Families First Coronavirus Response Act, passed by Congress in March amid the pandemic, temporarily provides employees with paid sick leave and expanded family leave under the existing Family and Medical Leave Act for reasons related to COVID-19.
Under the new law, said Rumel, teachers and other school employees are eligible for the sick leave at their regular rate of pay if they are experiencing symptoms or they are quarantined pursuant to federal, state, or local law or on doctor’s orders. Such employees are eligible for expanded family leave at two-thirds their regular pay to take care of a family member with COVID-19 or to take care of a child whose school or care provider is closed due to the pandemic.
O’Brien notes that the emergency leave provisions are expiring as of Dec. 31 unless Congress and the president act.
“We have a lot of districts in yo-yo situations in which they are open and then they are closed,” she said. “And we have some teachers who have been quarantined more than once. That leaves some questions about the leave.”
In states with collective bargaining and robust contractual leave provisions, “those questions will be dealt with,” O’Brien said. “In states that don’t have collective bargaining and strong leave rights, there will be a fall off the cliff.”
Workers’ compensation—For school employees who believe they have contracted COVID-19 on the job, state workers’ compensation laws are generally the main avenue for remedies, the advocates agreed.
Rumel said it would likely be an “uphill battle” because most such laws do not cover community-spread illnesses.
“For teachers to receive workers’ compensation benefits, they would have to establish that they contracted COVID-19 while at work,” he said. “Thus, teachers who contract COVID-19 must prove that they were not infected at the grocery store, at a doctor’s appointment, or at a family gathering. This can be an incredibly difficult burden to overcome.”
Legal Action Continues
Although school employers are routinely applying existing, and new, laws as they seek to deliver remote or in-person instruction, there have been legal conflicts that may yet shape the debate.
Over the summer, the Florida Education Association, which is affiliated with both NEA and the American Federation of Teachers, sued Florida officials who had ordered schools to reopen for in-person instruction. A state trial court judge, in granting an injunction blocking the order, wrote that the evidence he heard “demonstrated that some teachers are being told they must go back into classrooms under extremely unsafe conditions.”
In October, however, a Florida appellate court overturned the trial judge and upheld the state’s school reopening order, holding among other things that the FEA and other plaintiffs had failed to show “that any teacher was forced to return to the classroom, denied a requested accommodation from their employing school district, and then suffered harm.”
In October, the Georgia Association of Educators, an NEA affiliate, sued Gov. Brian P. Kemp, a Republican, alleging that a push to reopen schools for in-person instruction is putting school employees at risk.
“Educators, education support professionals (e.g., bus drivers, cafeteria workers, custodial staff), and their families face serious risks from the resumption of in-person instruction without adequate safeguards given that their work involves being indoors or in other, more limited enclosed spaces like buses, with large numbers of children and other employees throughout the day,” says the GAE suit, which is pending.
One incident highlighted in the lawsuit involves a photo of a packed high school hallway in the Paulding County, Ga. school system that went viral and was shown repeatedly on national TV news shows in early August.
In Chicago this month, an arbitrator upheld a grievance brought by the Chicago Teachers Union, an affiliate of AFT, against a requirement by the Chicago Public Schools that certain employees go to work in school buildings even though all instruction is being delivered remotely.
“I find reporting to work inside CPS school buildings at this time increases the danger of infection by COVID-19, an airborne, highly communicable, deadly, and still not fully understood disease,” the arbitrator wrote. “The only way to eliminate the risk of COVID-19 infection and death is for school clerks, school clerk assistants, and technology coordinators to work remotely.”
The Chicago school system has said it has improved safety conditions in its buildings and still expects those particular groups of school employees to work on site most days. On Tuesday, the school system and Chicago Mayor Lori Lightfoot announced that it plans to bring some students back for in-person instruction on Jan. 11. The teachers’ union criticized the decision.
“This mayor talks about equity, but where is the equity for the Black and brown clerks she’s needlessly forcing to work in person, at the same time she’s telling Chicagoans to shelter in place?” CTU Vice President Stacy Davis Gates said in a statement.
‘The Next Day I Was Gone’
Garcia, the Springfield, Mass., teacher, tested positive for COVID-19 just days after the district’s schools had shut down for the coronavirus in March. Garcia had just begun helping classes of “substantially separate” special education students navigate the early days of remote learning.
“One day, I was answering parents about what their children should be doing, and the next day I was gone,” said Garcia, who spent 39 days in intubation, until after the last school year ended. The school district did not inform students or even other employees of Garcia’s status.
Garcia, who became a teacher after several years as a paraprofessional in another district, resumed remote instruction at the beginning of this school year, while pushing for an answer on an accommodation under the ADA to stay out of school if in-person instruction resumed.
“I was told my name was on a list of teachers who cannot go back,” but there was no firm confirmation of an accommodation, Garcia said.
The Springfield district, which has about 26,000 students and 4,500 employees, is considering a return to in-person instruction, at least in the hybrid model, said district spokeswoman Azell Cavaan. The Springfield School Committee will consider the matter at a meeting in early December, she said.
Garcia’s school, John F. Kennedy Middle School, is one of 13 secondary schools that are part of the Springfield Empowerment Zone Partnership, a collaboration among the district, the state Department of Elementary and Secondary Education, and the Springfield Teachers Association with its own union contract and governing board for those schools.
Matthew Brunell, the co-executive director of the partnership, said he could not discuss any particular employee’s situation, but said the partnership has “reached out to all teachers and support staff to ask about underlying conditions they may have to be able to make accommodations for them.”
“That would allow them to work in a capacity that was student-facing and student-supporting but not have to be in the buildings,” he added. “On accommodations, these questions are being taken up right now. The great emphasis at the start of the school year was ensuring that educators and students were gaining comfort in being in a remote environment. I don’t think we have given the same amount of attention to what the return to [in-person] learning will look like.”
Garcia would prefer not to see a rush to return to classrooms given the resurgence of the virus, even with an accommodation to stick with remote teaching.
“Even if I don’t have to go back, I don’t want anyone to have to go back” amid the pandemic, Garcia said. “My first year of teaching was almost my last.”
A version of this article appeared in the November 25, 2020 edition of Education Week as Pandemic Is a Workers’ Rights Issue for Schools