COVID-19 Legal FAQ Update – ESP Rights to Breaks and Overtime (Revised)


From:  CEA Legal Center

Date:  June 24, 2020

RE:  COVID-19 Legal FAQ Update – Return to In-Person Learning: General Bargaining Advice

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.

As members settle in for a well-deserved and much needed summer break, many are already turning their sights to the beginning of next school year. Similarly, school districts, the Department of Education, and others involved with public education in Colorado are beginning to formulate plans for what a return to in-person learning in the fall might entail.

With a few months before school resumes in most places, and given the uncertainty that has surrounded COVID-19 from its inception, these initial plans tend to conjure up more questions than answers. The purpose of this series of FAQs regarding the anticipated return to in-person learning is to address many of the legal questions CEA is receiving from the field.

1. Do school districts have a duty to bargain with local associations when creating plans to reopen schools?

It depends. Colorado does not have a bargaining law that requires school districts to engage in collective bargaining with their employees, so any duty to bargain would arise from a collective bargaining agreement (CBA), as opposed to state statute.

In places where there is no CBA, the district has no contractual duty to negotiate with the local association when it comes to creating plans to reopen schools. In these cases, locals should explore ways to build partnerships with parents, community, and other stakeholders interested in maintaining a learning environment that is safe for students and employees. These alliances may create leverage that locals and others can use to affect positive outcomes.

If your local association has a CBA, there are a number of ways to protect it while inserting members’ voices into the discussion about the return to in-person learning. For example:

  • Identify the CBA’s “exclusive representation” language. Most CBAs—generally near the beginning—contain a recognition clause, which acknowledges that the district’s board of education recognizes the local association as the bargaining unit’s exclusive representative for purposes of collective bargaining. Associations should rely on this contract language when asserting their right to be at the table where critical decisions affecting bargaining unit members’ working conditions are being made.
  • Determine whether the CBA identifies certain mandatory subjects of bargaining. Many CBAs contain language stating that matters affecting wages and other terms and conditions of bargaining unit members’ employment are mandatory subjects of bargaining. This is important because if the decisions about returning to in- person learning relate to mandatory subjects of bargaining, the Association can— and should—demand that those issues be negotiated.
  • Review any initial return to in-person instruction plans for reopening schools the district has already created. When reviewing these plans, examine them with an eye toward how, if implemented, they might affect bargaining unit members’ wages and other terms and conditions of employment, along with any other mandatory subjects of bargaining set forth in the CBA. If it appears the district has ventured into areas that should have been, but were not, bargained, the Association should demand bargaining right away.
  • Review the CBA’s grievance process. If the local association determines the school district failed to negotiate one or more mandatory subjects of bargaining, and if the district refuses to bargain (or ignores demands for bargaining), the presumptive approach would be to file a grievance pursuant to the CBA’s grievance procedure. Be mindful not to miss any filing deadlines. When an Association is considering filing a grievance, leaders and UniServ staff are strongly encouraged to call CEA Legal to speak with the Officer of the Day.
  • Gather and preserve documents that may be useful in showing the district failed to bargain. For example, save copies of the district’s initial re-opening plan, any letters or emails from the administration to staff or the community regarding the district’s plan, and any other documents indicating the district created its plan without first negotiating with the local association. All of this may be evidence used during the grievance process, including at arbitration, where applicable.

Although many CBAs share similarities, each is unique and must be analyzed and interpreted according to its terms and the practices that have grown up around it. Staff and leaders who have questions about the CBA they are dealing with should call CEA Legal to speak with the Officer of the Day.

2. Should we bargain during this pandemic?

Absolutely. Many local associations may have collective bargaining agreements (CBAs) that will be expiring in the coming months and those contracts need to be renegotiated. Where CBAs are not set to expire, locals may need to bargain memoranda of agreement or understanding that address the impact of COVID-19 on terms and conditions of employment resulting from school closures, new operating structures, revised school calendars, mutable job duties, and frontline work assignments.

3. If our contract is set to expire, should we try to negotiate a full successor agreement or look to extend the current CBA?

The reality is that bargaining a comprehensive multi-year agreement may prove difficult during this period of tremendous uncertainty, and, for most locals, a short extension to the current CBA may make the most practical sense. An extension to a current agreement should include step increases and column (lane) movement and it may include a cost-of- living or across-the-board increase. It should, at least, preserve the status quo on benefits, but may also make amendments necessary to ensure that benefit eligibility and accrual continue despite disruption. It may provide members with reimbursement for technology associated with working remotely. It may also spell out the process for negotiating MOUs to address rapidly changing terms and conditions. It should address the health and safety issues of frontline workers.

4. How do we conduct our ratification vote?

In-person voting is not an option in many locations. Mail voting requires home addresses, stamps, envelopes, and ballots. Electronic voting requires a platform for conducting the vote and member connectivity and access. Electronic voting on the members’ only section of an affiliate’s website and commercial vendors are viable options. Other options, such as voting by text or using an online survey tool are discouraged. If absolutely necessary, the employer’s email system can be used to share voting information and administer the vote.

5. How do we ratify an agreement if the local’s constitution and bylaws (CBL) require in-person voting?

The challenged posed here is if an affiliate’s CBL requires in-person voting, then it would require in-person voting to change the CBL to allow for voting by electronic ballot. The reality is we may need to alter, at least temporarily, the way we vote and be prepared to make the case that adjustments were reasonable, necessary, and made in good faith.

6. Do members need to ratify COVID-19 related MOUs?

Typically, an MOU/MOA does not require ratification unless it covers clearly mandatory subjects of bargaining. Real time decisions are being made under an expanding scope and use of impact bargaining, which typically does not require a ratification vote to execute an agreement. Members should be kept up to date on any bargaining between the employer and the association and MOUs, whether ratified or not, need to be fully explained to members.