From: CEA Legal Center
Date: April 7, 2020
RE: COVID-19 Legal FAQ Update
This memorandum serves as a guidance to frequently asked questions presented to the CEA Legal team regarding how to respond to the unprecedented epidemic sweeping our nation. The FAQ’s will be updated as we address questions from the field. Please be patient and understand that these circumstances present new and uncharted areas of law. CEA Legal will provide the best advice it can based on its understanding of current law however, the law is unclear in many areas.
Question: How to respond to the unprecedented epidemic sweeping our nation. This email supplements our prior FAQ in light of the new orders issued by the Governor.
a. On March 25, 2020, the Governor issued Executive Order 2020 17, directing Coloradoans to stay at home due to the Covid-19 virus;
b. On the same date, the Executive Director of the Department of Public Health and Environment (Director) issued Amended Public Health Order 20-24, implementing the Governor’s March 25th Order. The Director’s Order did not define public schools as a critical government service for purposes of the Governor’s March 25, 2020 Stay at Home Order. The only reference to educators was in the section concerning necessary travel. The Director’s Order defined “necessary travel” to include that for receiving materials for distance learning and any other related services from educational institutions.
c. On March 26, 2020, the Director issued “Updated” Public Health Order 20-24, which added “Educational Institutions that Provide Critical Services to Students and the General Public” to the definition of Critical Businesses, including K-12 public schools. The school functions included in this Order as essential functions are: providing meals, housing facilitating or providing materials for distance learning, and providing “other essential functions” for students.
d. The Director’s Order requires that Social Distancing be observed. Social Distancing is defined as:
To reduce the risk of disease transmission, individuals shall maintain at least a six-foot distance from other individuals, wash hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, cover coughs or sneezes (into the sleeve or elbow, not hands), regularly clean high-touch surfaces, and not shake hands.
e. Individuals exhibiting symptoms of Covid-19 are required to self-isolate. The order describes those symptoms, which include a cough or shortness of breath. Please go to state of Colorado’s link for current general information on Covid-19.
f. Requiring non-essential employees to report their school buildings may constitute age and/or disability discrimination because it may have a disproportionate adverse impact on older employees and employees with certain disabilities or underlying medical conditions that make them vulnerable.
g. If an educator receives a directive to go to report to their school building, please contact your Union representative to obtain additional guidance.
h. Factors include the specificity of the notice given employees of the rule, the employer’s motive, and any other relevant factor. It is a well-established labor rule that recognizes that an employee must obey a directive, then challenge the directive through the grievance process. If an employee believes that an employer directive endangers his/her safety, contact your union representative for further guidance.
i. Because a single act of insubordination can be grounds for termination of employment, we urge caution before advising members not to comply with any workplace directives to return to work. Uniserv Directors should consult with CEA Legal on a case by case basis in this instance.
j. As a first step, we advise leaders to contact their school board or superintendent, as appropriate, to notify them of the unreasonableness of any directive that staff return to work, pointing out that education is not an essential government function.
k. The most successful test cases, for individuals who will not comply with any such directives are those in the high risk group (60 years old, or older, or with underlying medical conditions) and, especially, those whose medical providers would be willing to testify that reporting to work would endanger their health.
Please do not hesitate to contact your Union representative if you have any questions or concerns.