School Closure Educator Rights - Legal FAQ

 

A number of you have reached out for legal guidance regarding COVID-19 and its impact on your workplace. Rest assured we remain open and available to answer your legal questions and concerns. As you know, this situation is not static and updates, guidelines, and the news change frequently. We have compiled a list of the most current and frequently asked questions and will continue to update guidance to members as more information becomes available.

 

Can I be forced to work?

It depends on where you live. Nearly 40 states now have shut down schools. Some states are requiring teachers and administrators to continue work during this time. Certain states have recommended or ordered shelter in place or self-quarantines. If you are unable to locate specific information about your state, please feel free to contact AAE Legal Services for further information.

 

Can I be forced to stay home?

The short answer to this question is yes. Given the unprecedented nature of COVID-19, employers, including school districts, have been given wide latitude to ask employees to stay home, close down business or otherwise act to protect the health and safety of others. For the most part, these requests are coordinated with state and local government officials.

 

If I work from home do I get paid my full salary even if I work less than 40 hours?

Generally yes. The Fair Labor Standards Act (“FLSA”) requires that employees who are exempt (meaning not entitled to overtime) must be paid their salary during the week any work is performed. Usually this remains true even if the employee does not work a full 40 hours1. Even if there are exceptions to this rule, your district may have a legal obligation to continue your pay because of an employment contract, policy or practice, or under a state wage law. If you are unable to locate specific information about your state, please feel free to contact AAE Legal Services for further information.

 

Can my employer charge time against my sick leave or PTO if I choose to stay home?

It is possible that if you are supposed to be at work and choose to stay home that your district may charge your sick leave or absence time accumulated. There is no legal requirement under the FLSA that you accumulate sick or leave time and most often this happens due to your employment contract, policies/procedures or state laws. While the federal law does not prohibit your employer from deducting time2 if you do not report to work; state laws, policies/procedures or your contract likely will.

UPDATED March 19, 2020

On March 18, 2020, HR 6201, also known as the Families First Coronavirus Response Act (“FFCRA”), was signed by the President and will take effect April 2.

Please note the law only applies to employers with less than 500 employees. That means if your district or employer has more than 500 total employees including administrators, teachers, support staff or other employment categories the FFCRA does not apply.

If your district or employer is smaller than 500 employees in total, it could give you some added protection with respect to leave.

Employees will be eligible for 10 days of sick leave (full pay for self, 2/3 pay for family care) and use of 12 weeks of Family and Medical Leave Act (“FMLA”) leave (two weeks unpaid and then up to 10 weeks at 2/3 pay) for several circumstances related to COVID-19. While there is no pay for the first 10 days of leave employees can, but are not required, to use any other leave available to them, including the emergency sick leave discussed below. Your district may not require you to use paid leave during this period. After 10 days, your employer must pay two thirds of your regular rate of pay for the number of hours they would normally be scheduled to work, capped at $200/day and $10,000 total.

 

The law also provided 80 hours of paid emergency sick leave for the following circumstances:

  1. When quarantined or isolated subject to federal, state, or local quarantine/isolation order (capped at $511 daily);
  2. When advised by a health care provider to self-quarantine (due to concerns related to COVID-19) (capped at $511 daily);
  3. When experiencing symptoms of COVID-19 and seeking a medical diagnosis (capped at $511 daily);
  4. When caring for an individual doing #1 or #2 (2/3 pay-capped at $200 daily);
  5. When caring for a child whose school or place of care is closed due to COVID-19 (2/3 pay- capped at $200 daily); or
  6. When the employee is experiencing any other substantially similar condition (2/3 pay- capped at $200 daily).

Sick leave must be paid at your regular rate of pay for leave used for your own illness, quarantine, or care. Sick leave must be paid at two-thirds of your regular rate if taken to care for a family member or to care for a child whose school has closed, or if the employee’s childcare provider is unavailable due to the coronavirus.

 

Is my health information private?

Maybe. For those who have disclosed health concerns to administrators or an HR department, including information about a pre-existing health condition that makes them high risk, the employer may choose to keep that information confidential unless it is requested by governmental agencies or third parties assisting with COVID-19. While HIPAA still applies even during a pandemic; employers are not “covered entities” under that law. That means unless the disclosure is prohibited by another law such as the Americans With Disabilities Act, disclosure may be appropriate in certain circumstances. It would be wise for employers to maintain privacy during this time unless disclosure becomes absolutely necessary.

If you have not disclosed a disability or health condition to your employer that you believe makes you more susceptible to COVID-19, your district can only ask for more information from you if it has objective information to reasonably conclude you face a direct threat with respect to contracting the virus.

 

What if I got COVID-19 at work?

You should immediately file a worker’s compensation claim. Some states have issued rules to make clear that employees who contracted the virus at work should have medical bills covered in addition to other worker’s compensation benefits.

 

What precautions should I take?

Teachers have been classified as a “Medium Exposure Risk.” Individuals in this category have jobs that require frequent and/or close contact with (i.e., within 6 feet of) people in the general public.

If you can, stay home. If you have to go to work, be thorough and diligent with your self-care. Wash hands often and thoroughly with antibacterial soap. Workplace areas should be regularly and thoroughly sanitized and teachers should avoid all physical contact including handshakes. Where possible, contact should be limited to others and the public’s access to schools including offices, gymnasiums, classrooms, and cafeterias should be restricted.

 

Where can I find out more?

Federal, state, and local government agencies are the best sources of information about COVID-19. Staying informed about the latest developments and recommendations helps you stay updated on changes based on this evolving situation.

 

Below are several recommended websites to access the most current and accurate information:

■ Occupational Safety and Health Administration website: www.osha.gov including guidance issued at https://www.osha.gov/Publications/OSHA3990.pdf

■ Centers for Disease Control and Prevention website: www.cdc.gov

■ National Institute for Occupational Safety and Health website: www.cdc.gov/niosh

 

 


 

 

1 See 29 C.F.R. § 541.602(a).  (If the employer closes operations due to emergency or other disaster for less than a full workweek, then the employer must pay an exempt employee “the full salary for any week in which the employee performs any work without regard to the number of days or hours worked,” because “deductions may not be made for time when work is not available.”).

2 https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2005_10_24_41_FLSA.pdf.

Last Updated on Thursday, 26 March 2020 15:43