As schools make plans for
reopening during the COVID-19 pandemic, so many important
considerations come into play. Considering all scenarios for
infection and spread of the virus, teachers are presented with
daunting tasks to assure safe standards. And, what will happen if a
teacher or group of teachers is exposed to someone with COVID-19 –
exposure at school or elsewhere? How will this disrupt a district's
plans for a successful return?
Could such an exposure
require many (all?) teachers to quarantine and thus cripple the
number of staff and eventually end person-to-person instruction?
What about teachers who
are forced to self-quarantine? If teachers are exposed to someone
with COVID-19, will they have to use their sick days to
self-quarantine for those two weeks?
Being an ex-teacher, I
wondered about these questions. Sick leave accumulated over time was
a precious commodity for me and a safety net to assure the health of
my students and my family. I researched for answers and found this
information at the Ohio Education Association site at ohea.org.
Until December 31, 2020,
the Emergency Paid Sick Leave Act (EPSLA) requires school districts
to provide 80 hours of paid sick leave (or the equivalent of 10 days
of pay for part-time) to employees who need to take leave from work
for certain specified reasons related to COVID-19. This benefit is
above any unused sick leave that an employee may have accrued under a
collective bargaining agreement or Ohio law. The COVID-19 reasons for
EPSLA use include the following:
- Full pay (up to $511 per day) if the employee is subject to a government quarantine order or has been advised by a health care provider to self-quarantine; or,
- Full pay (up to $511 per day) if the employee is experiencing COVID-19 symptoms and is seeking medical attention; or,
- Two-thirds the employee’s rate of pay (up to $200 per day) if the employee is caring for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19; or,
- Two-thirds the employee’s rate of pay (up to $200 per day) if the employee is caring for someone who is subject to a government quarantine order or has been advised by a health care provider to self-quarantine.
Until December 31, 2020
the CARES Act also allows an employee to use FMLA in the event an
employee is caring for his or her son or daughter whose school or
place of care is closed or whose child care provider is unavailable
for reasons related to COVID-19. The total leave allowed under FMLA
is 12 weeks, including any leave that may have already been taken.
The first two weeks are unpaid, though the Emergency Paid Sick Leave
Act or other available paid leave can be used during this time. The
remaining ten weeks will be paid at two-thirds the employee’s rate
of pay (up to $200 per day).
The U.S. Department of
Labor has clarified that if you are quarantined, seeking medical
attention, or experiencing COVID-19 symptoms, the “traditional”
FMLA provisions apply to those situations. Therefore, you are NOT
entitled to any Federally required compensation after use of the
EPSLA in order to receive compensation you will need to use your
personal sick leave, personal leave, or other contractually provided
paid leave benefit.
Reopening and Teachers
With High Risks
What about teachers with
compromised health or those who live with family members who may be
especially at risk for infection? Before reopening, they will have
to decide if school administrators and policies can protect them and
their students from catching the coronavirus.
Arthur Ehrlich, a partner
with Chicago law firm Goldman and Ehrlich, who specializes in
employment law, says an individual’s personal situation is key when
determining their potential. Ehrlich says …
“If you’re a
high-risk group—a heart condition or diabetes—something that
would put them in a more severe position if they get coronavirus,
they have a little more leeway in terms of legal rights but their
situation can usually be accommodated with remote learning. The
provisions of the Americans with Disabilities Act still apply,
especially to a coronavirus situation if that teacher has an
underlying potential disability. If there is an ability to work
remotely but the school district won’t allow it, that could come
down to an ADA violation.”
(Marco Buscaglia.
“Imperfect attendance: Will teachers take leave if coronavirus
cases
continue to climb?”
Chicago Tribune. July 07, 2020.)
Reopening
schools is far from merely unlocking the doors and allowing students
and teachers to resume educational activities. If a significant
number of students, teachers, or other staff members contact
COVID-19, the best plans for person-to-person education may prove
ineffective.
The Brookings Institution
reports there is significant liability for school districts already.
Many have not been able to fulfill the IEP requirements under IDEA.
Although Brookings has been asking U.S. Secretary of Education Betsy
DeVos for flexibility on this matter, she has refused to do so.
Initially, some governors had indicated that the safest approach
would be to provide no services to any student. Superintendents
rejected that and provided services to as many students as they could
safely and remotely.
Brookings says …
“There is liability
in providing inadequate services, or no services at all, and there
will be liability if children or adults get sick in a school that has
opened. Would we rather be sued for providing inadequate services or
for the death of students and staff? It’s a lose-lose situation
either way, but superintendents will do their very best to provide
adequate services in a safe and healthy environment.”
(Daniel A.
Domenech, Michael Hansen, Heather J. Hough, and Emiliana Vegas.
“Reopening schools amid the COVID-19 pandemic: Your questions, our
answers.”
Brookings
Institution. June 3, 2020.)
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