Coronavirus and Schools: Employment Issues
CORONAVIRUS UPDATE
This post will provide more questions than answers regarding the implications of COVID-19 on employment issues, but we felt it important to address what we know so far, as many of our clients are dealing with these issues now.
The major areas that school districts will likely confront are: use of sick time for those who are actually exposed to the virus; use of sick time for those who are not exposed but who self-quarantine for a variety of legitimate reasons; payment and scheduling when entire schools are closed; cleaning of facilities; and use of remote instruction.
For any employee who has been exposed to a known case of coronavirus, districts can and should require that employee to stay home for 14 days from exposure, regardless of whether that employee is experiencing symptoms. If the employee has sick time, they should be permitted to use that time. If the employee does not have any remaining sick time, districts are not obligated under these circumstances to make such leave paid leave. Districts could elect to do so, but if so and the employee is a member of a bargaining unit, we recommend that the district and union execute a Memorandum of Agreement (MOA) acknowledging that this decision does not establish any precedent or past practice. Perhaps the most challenging circumstance would be where an employee has not elected to self-quarantine, but the district has reason to believe there was possible exposure. On a case by case basis, we believe the district can require that employee to stay home as well. The key, however, will be that the district has a good-faith reason to believe that exposure was possible. An employee returning from Italy would seem easy, but an employee returning from Ireland would not be. We are on the lookout for guidance from the CDC or Pennsylvania’s Department of Health about what nexus to the illness is appropriate before requesting an employee to stay home.
If an employee elects to self-quarantine, in the absence of symptoms or exposure, this is arguably not an appropriate use of sick leave. However, even though the law might permit the district to designate the leave as unapproved, we think under these unusual circumstances that the leave should be permitted. If the employee has sick days to use, they can use them, if not, the leave should be unpaid. For these employees we do not recommend providing paid time. Again, for union employees, an MOA is appropriate to recognize that the district is not establishing a precedent or past practice regarding the acceptable use of sick time.
Both of these circumstances are also something of a moving target. For example, if a significant number of employees decide to self-quarantine, particularly given that we anticipate that securing substitute coverage will be even more difficult than usual for a while, the district will have to decide between revisiting the policy of permitting self-quarantine or shutting down the school altogether. Any MOA should reserve the right to revisit the decision to allow the leave.
So far school closings in Pennsylvania have been limited to one to five days. Such closings should be treated the same way districts treat snow days. If you typically maintain pay and make up the days at the end of the year, that same approach should be applied here. Similarly, districts can identify essential personnel expected to attend in the same way it does for snow days. In the event closings extend beyond two weeks, the issues will get more complicated. However, we think it very likely that if such closings are widespread, then the state and/or federal government will step in with directions on how to proceed. In the meantime, we will cross that proverbial bridge when and if we need to.
One interesting wrinkle in the current situation is that districts typically rely on doctors’ notes both for excusing an extended absence and for clearing an employee back to work. It is not at all obvious that this approach is appropriate here. For employees who have been exposed and are not symptomatic, there is nothing helpful for a doctor’s note to contribute. Furthermore, the current recommendation is that patients who experience symptoms should not immediately go to the doctor or the emergency room before calling the county health department and confirming that a test is available. Similarly, in the absence of a proper screening test, which family doctors will not typically have, those doctors are not in a position to clear an employee back to work. The upshot is that if a district believes that employees are abusing the requests for leave, we will approach those on a case by case basis.
Most of our clients are already moving toward intensifying their cleaning efforts. It is our position that unless a collective bargaining agreement has specific language on the subject, districts have the authority to direct their custodial staff to do the necessary cleaning. It is possible that a union may assert that such work violates a “health and safety” provision in their agreement. While we think that such an argument is probably a weak one, it will depend on the specific language, so please get in touch with us. Ironically, we think the more likely fight is that a district’s decision to use an outside cleaning agency constitutes outsourcing bargaining unit work. To the extent that a specialized cleaning crew is using specialized equipment to do the job, we think districts are likely okay, but contact us if the union is pushing back. We would also note that even if a union filed an unfair labor practice charge on the issue, the work would likely already be completed and the parties could certainly come to an agreement about how to handle future situations.
Finally, as of the date of this email, PDE has not indicated that it will permit the use of cyber instruction in lieu of school days for districts that did not already submit and get approval for the “flexible instructional days” program. While we would not be surprised to see this issue revisited by PDE, right now cyber instruction is not available as an automatic substitute for school days. Even if PDE does revisit the issue, districts should start to think about how to handle students without access to internet and students with IEPs for whom cyber instruction will not likely be sufficient. While the loss of a few days is unlikely to rise to the level of a meaningful special education claim, an extended closing will certainly raise some issues. We’ll cross that bridge when necessary as well.
Every district is likely to have some specific issues that arise, and don’t hesitate to contact us with those. We hope that this provides some guidance for planning in the meantime. We will update our guidance as the situation continues to evolve.