From: CEA Legal Center
Date: March 24, 2020
RE: COVID-19 Legal FAQ
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. This FAQ will be updated as we add advice based on 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.
1. Can a Colorado school district legally require teachers to report to their school buildings to perform distance-learning activities, attend meetings or perform other aspects of their work?
The Governor’s March 18, 2020 Executive Order does not directly address this issue; however, there are arguments to support that educators should not be directed to report to public school buildings except for limited purposes.
a. First, while the Order does not expressly require districts to completely close their buildings, it does require school districts to “close buildings for normal in-person instruction.” The Order also states “school buildings, as approved by local emergency management and the local public health agency, may be utilized” for various purposes, including “services for . . . educators” during the period of the Executive Order. This provision can be interpreted to mean that school buildings cannot be used for any purpose without the approval of the local emergency and health authorities. If a school district is requiring its staff to report to school buildings, it is advisable to request that the district provide verification that the local emergency management agency and public health department have approved the use and entry of the school building.
b. Second, the Executive Order states that the Order “applies to all students and employees of” the public schools (with the exception of designated essential personnel). This can and should be interpreted to mean that public schools cannot require students and non-essential employees to report for in-person work.
c. Requiring non-essentials employees to report to their buildings may constitute an unreasonable directive that employees can violate without committing insubordination.
It is a basic principle of employment law that an employee is excused from following an employer order that is unreasonable. There is certainly a strong argument that an order to do something that is dangerous to an employee’s health would be unreasonable. In regards to COVID-19, a directive to report to school would be most dangerous for older employees and employees with certain medical conditions, so employees who fit within the vulnerable groups would have the strongest arguments as to why they cannot go to the school buildings.
d. 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.
e. The NEA-OGC has issued guidance on this topic in which it presents three other legal grounds supporting this answer. Two of those grounds do not apply in Colorado because Colorado does not have either a workplace safety statute or a collective bargaining law that applies to public schools. The third legal ground cited by NEA, a principle of contract law called “impracticality of performance,” would require the same or even more evidence of danger to the employee’s health and would not entitle the employee to pay for the time he/she is directed to be, but is not, at school.
f. If an educator receives a directive to go to report to their school building, please contact the Officer of the Day to obtain additional advice.
2. If a school district shuts down due to Coronavirus, does it have to pay employees and continue their benefits during the shutdown?
The answer to this question depends upon many factors. If a school district’s master agreement or Board of Education policies require pay and benefits when schools are closed for emergencies, then the covered employees would have to be fully paid and receive their full benefits during the closure. In many school districts, classified and certified employees are covered by different master agreements. Thus, it is possible that one agreement would require its covered employees to be paid during an emergency closure, while another would not. Therefore, it is important for employees to review and understand the provisions of any master agreement that might cover their employment and to reach out to their local union president or UniServ Director with any questions.
If the master agreement or school board policies do not require pay and benefits during emergency closures, or there is no master agreement, the answer is more complicated. Unfortunately, the U.S. Fair Labor Standards Act (FLSA), which covers classified employees, does not require employers to pay covered employees during a shutdown that is not the fault of the employer. However, school districts that have master agreements are required to negotiate with their local associations if they decide not to pay employees their full pay and benefits during a shutdown – because pay and benefits are mandatory subjects of bargaining.
Local associations can negotiate with their districts for full pay and benefits during a shutdown, and there are many arguments in favor of this position. For example, since school districts have already budgeted for full pay and benefits for their employees for the full school year, they clearly have the resources available to pay their employees during the shutdown.
3. If a school district shuts down due to Coronavirus and does not pay its employees, are the employees entitled to Unemployment benefits?
Very likely. The U.S. Department of Labor has issued guidance enabling states to provide benefits to these employees and it appears that Colorado will take action to do so. Any school district employee who is not being or will not be paid due to a Coronavirus shutdown should file an online application for Unemployment benefits immediately. If a member is denied benefits, please have the member follow up with their UniServ director or leader as soon as possible as there is a short 20-day appeal period.
4. If a school district shuts down due to Coronavirus, can the district charge employees’ accrued sick or personal leave or Family and Medical Leave (FMLA) entitlement for the days of the closure?
No, time that an employee is not scheduled to report to work may not be counted as FMLA leave. If a school district temporarily stops its activities and employees are not expected to work, the days during which operations are ceased do not count against the employee’s FMLA leave entitlement. Likewise, a school district cannot charge employees’ accrued sick or personal leave accounts for days when the schools are shut down and the employees are not expected to work.
5. If an employee is already on an approved FMLA leave or is using sick or personal leave when his/her school district shuts down due to Coronavirus, how should the employee’s leave usage be calculated?
As stated above, employees cannot be charged for usage of sick, personal or FMLA leave for days when the school district is shut down. Therefore, the employee’s preexisting sick, personal or FMLA leave must be terminated when the school district shuts down and no further days may be charged against the employee’s leave until school resumes.
6. If a school district shuts down due to Coronavirus, can it require teachers to perform work during the shutdown, such as providing SPED services or conducting IEP meetings?
Yes, as long as the work is reasonably related to the employee’s job, the employee is qualified to perform the work, the employee is fully paid for his/her time spent performing the work, and the work does not expose the employee to a health risk. A school district cannot require employees to meet or interact with students or others during a closure because that could present a health risk. In regards to SPED services and meetings, a district could not require teachers to provide SPED services in person, but could require them to do so virtually if that is possible. It is the district’s responsibility to ensure that any virtual services it provides to SPED students are in compliance with SPED laws. Teachers who have any questions or concerns about SPED compliance should direct them to the appropriate district administrators and document their communications.
7. Can a school district decide to substitute distance learning for in-school instruction because of the Coronavirus and then require all teachers to provide distance learning?
Yes, as long as the teachers are provided with all equipment, instruction and assistance necessary to do so and the teachers are paid at their regular rate of pay for all days that they work.
8. If a school district decides to substitute distance learning for classroom instruction due to the Coronavirus, can it require teachers to perform additional work related to distance learning, such as preparing distance learning lesson plans, in addition to their regular duties?
The answer depends largely on the school district’s negotiated agreement with the teachers’ association, if any. Some master agreements have provisions specifying the number of hours per day or week that teachers can be required to work and providing that teachers will be paid additional money for working beyond those hours. For more specific responses regarding particular district practices or member employment matters, please follow the CEA Legal protocol in its March 15, 2020 Memorandum for COVID-19 Access to Legal.
9. If an employee takes off from work due to Coronavirus, is he/she entitled to paid leave?
An employee who does not come to work because he/she either has or is suspected of having Coronavirus, was exposed or is suspected of being exposed to Coronavirus, has symptoms of Coronavirus, or is in a vulnerable group for Coronavirus, is entitled to use any accrued paid sick leave, sick leave bank leave or personal leave that he/she may have. The employee also has the right to use any FMLA leave to which he/she is entitled.
In addition, under emergency rules issued in Colorado, an employee who has Coronavirus, or has been tested for Coronavirus and the result is pending, is entitled to up to four days of paid sick leave if the employee has no paid sick leave that he/she is entitled to use.
10. To review the current status of the Department of Labor’s response to the Coronavirus-19, please click on this link: https://www.colorado.gov/pacific/cdle/information-and-resources-coronavirus
As you encounter additional issues that are not addressed in this memo, please follow the CEA Legal’ s memorandum for COVID-19 Access to Legal. We will update this memorandum as new issues and questions arise. This unprecedented circumstance fluctuates on a daily basis and CEA Legal will be providing updates to this Memorandum as timely as possible.