Coronavirus and Schools: Labor Questions Related to Coronavirus Closure
CORONAVIRUS UPDATE
As we move down this path of state-mandated school closings many labor related questions arise on a daily basis. Please consider this as part of the ongoing advice you have received and will continue to receive on these matters from SSKW.
Hourly Employees
Many questions have been asked about how to handle hourly employees. In our opinion, districts have considerable discretion in how to handle hourly employees during the state-mandated school closing. Assuming that the district wants the employees to continue to work during the closing there is nothing in the state-mandated school closing directive which would prohibit this action. However, be advised that should the decision be made to utilize hourly employees during the school closing there is a possibility that if school time is made up, and these employees work more than the contract year sets out for maximum days, additional pay may become necessary. In situations where the district wants to pay the employee and not have them work, be advised that the employee may still demand payment at the end if time is made up. This is especially true if this issue is not addressed with the union prior to the commencement of the pay during the non-work status. For this reason we suggest that if a district plans on paying hourly employees during school closings it should first enter into a memorandum of agreement with the local union that allows for the employee to be paid now but would agree that if the work is made up the employee would not get paid twice. This memorandum of agreement should also contain a provision which states that such arrangement does not establish a past practice or a manner of doing business.
Hourly Employees/Unemployment Compensation
The district could also choose not to employ and not to pay the hourly employees during school closings. If it should make this choice the employee will be eligible to file for unemployment compensation. There is currently a five-day waiting period for unemployment compensation benefits. This too may change depending upon future legislation dealing with this pandemic crisis.
Paid Leave
Some clients have contacted us about the recent house bill providing paid leave. This bill awaits consideration by the senate. However, even if it passes, that provides leave to employees who do not report to work due to illness, exposure or need to care for an ill family member. The key is “report to work.” When schools are closed, this legislation would be inapplicable. We will keep our clients apprised of legislation or regulations changes as they occur. We have also seen a blanket waiver from PSEA which they are asking districts to sign in exchange for employees cooperating and working during the school closing. While we applaud PSEA's intention to cooperate we cannot recommend signing off on a blanket waiver.
Sick Days
We have also been asked whether a district can advance sick days to employees. The answer to this question is not simple. Section 1154 of the Pennsylvania School Code specifically sets forth the amount of sick days employees are to receive. It is not clear whether a school district has the authority to overrule a statutory mandate. If not, the expenditure may be deemed to be inappropriate. For these reasons, it is our advice that the district refrain from advancing sick days until some new legislation is passed either granting additional sick days or allowing for advancement of such days.
Contracted Employees
Contracted employees and contractors are also areas where new issues are arising. Third-party contractors should be handled on a case-by-case basis. We recommend the business manager or the solicitor review third-party contract provisions which address payment, minimum payment, as well as suspension of the contract.
Long-Term Substitutes
Long-term substitutes, depending upon how hired, can be treated as a cross between a third-party contractor and a contracted employee. The determinative question is whether the long-term substitute is a "teacher" under section 1153. We believe that regardless of who hired the long term substitute, a third party agency or the district, how the employee was hired determines the employee’s status during the closedown. If an employee were hired “until necessary” then the payment could cease for the long-term substitute with the school closing. If the long-term substitute were hired for the duration of the school term then payment would be required until the end of the term despite the school closing.
Essential Employees – additional pay?
Essential employees who work during the school closing are not, in our opinion, entitled to receive additional pay over the other employees who are not working. While this might not be the most popular decision a district can make-- and certainly a district can choose to pay a premium for the employees that are working during the school closing, it is a decision the district is legally entitled to make.
Working From Home
If you will be asking employees, in particular professionals, to work from home, the first thing you should do is check the collective-bargaining agreement to see if there are any restrictions that might apply. If not, it is acceptable to require certain employees to fulfill their professional duties while they are being paid and at home. We suggest that if you are planning to ask employees to work from home that such directive be placed in writing. If the employee or union objects the employee should be directed to follow the directive and advised that they are free to file a grievance afterward. The only legitimate reason for failing to comply with a directive is for health and safety reasons. Since you will be asking the employee to work from home as opposed to coming to the workplace the likelihood of a safety and health defense in this instance is slim. On the other hand the district should be certain to provide all appropriate safety and health gear and equipment for any maintenance or staff employees that are asked to come in and work during the school closing. Again, if the state ultimately extends the school year, and your teachers “worked” during the closure and are then required to work at the end of the year, they will likely seek payment for days beyond the school year.
Charter/Cyber Schools
Finally, questions have been asked about payments to charter and cyber schools. It is our advice that the district not pay for work that was not performed in the cyber or charter schools. If you have any concerns or if the schools argue that you owe them the money for the time closed you should contact your solicitor.
We will continue to keep you apprised of key issues and commonly asked questions that arise regarding the school closings due to the COVID–19 virus. Further, our offices remain open remotely and we are all available for questions and emails.
Thank you and stay well.