Ohio Teachers -- Concerns About Reopening

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.)