UPDATED October 15, 2021

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 vaccinate? 

No.  You cannot be forced to vaccinate.  However, courts have uniformly upheld vaccine mandates thus far.  As you can imagine there are hundreds of lawsuits challenging mandates and related issues.  So far, courts have allowed employers to require vaccination if an exemption does not apply.  However, some employers are offering testing options, leave or other avenues for educators who do not wish to vaccinate.

Can I be asked to COVID test if I don’t want to vaccinate? 

Yes.  Testing as an alternative to vaccination is allowed.

Can I be asked to use a specific type of COVID test? 

It depends.  Some districts are offering different types of testing so those who are going through regular testing can choose the method that best suits their needs. Other districts only offer a nasal swab test.  Many individuals have found saliva or other tests at nearby facilities that are free of charge or offered at reduced rates.  Oftentimes districts will allow test results from other locations in lieu of what is provided by the district.

My district is forcing me to go on leave is that OK? 

Yes.  Employers are allowed to offer leave as an accommodation to those who are unable to get vaccinated as an alternative for those who do not wish to get vaccinated.

Do I have to disclose my vaccine status?  What about HIPAA? 

Your vaccine status is confidential but you still must disclose it to your employer.  HIPAA only applies to health care providers.  Generally, schools do not fall into that category.  Your employer still must keep your medical information confidential.

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Can I be forced to have my camera on when teaching online lessons?

Generally yes.  While there are some privacy concerns related to virtual classrooms and some states or cities have banned the use of certain virtual meeting programs for schools, teachers are expected to enable their cameras and “appear” during the teaching session.

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 hours.[1] 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 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 time[2] if you do not report to work; state laws, policies/procedures or your contract likely will.

When do the new laws go into effect?

The Department of Labor (“DOL”) changed the start date of Families First Coronavirus Response Act (“FFCRA”) discussed in more detail below to April 1, 2020.  This law expired December 31, 2020.  There is no longer paid sick leave for COVID required.

What sick leave/pay am I entitled to?

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 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 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.

Keep in mind that there are also overall payment limits as well.  For reasons 1,2 and 3 above the total cap is $5,110.00.  For reasons 4,5, and 6, the total cap is $2,000.00.

This law expired December 31, 2020.  There is no longer paid sick leave for COVID required.

May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under FFCRA?

No. You may take up to two weeks—or ten days—(80 hours for a full-time employee) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours. This law expired December 31, 2020.  There is no longer paid sick leave for COVID required.

If I am home with my child because his or her school or childcare is closed do I get paid sick leave, expanded family and medical leave, or both?

You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or childcare facility is closed due to COVID-19 related reasons. FFCRA provides for an initial two weeks of paid leave. After the first ten workdays have elapsed, you will receive 2/3 your pay. This law expired December 31, 2020.  There is no longer paid sick leave for COVID required.

Can my school deny me paid sick leave if it gave me paid leave for a reason identified in the FFCRA prior to the Law going into effect?

No. The FFCRA imposes a new leave requirement on employers that is effective beginning on April 1, 2020.  This law expired December 31, 2020.  There is no longer paid sick leave for COVID required.

Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the FFCRA when the leave exceeds ten days.  This law expired December 31, 2020.  There is no longer paid sick leave for COVID required.

Are the paid sick leave and expanded family and medical leave requirements retroactive?

No.

Is my health information private?

Maybe.  For those who have disclosed health concerns to administrators or an HR department, including information about a preexisting 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.

I am essential staff and my school keeps asking about my health.  Is that legal?

Yes.  Your school can ask you about your health if you show signs of illness or even allergies as some of the symptoms are similar to COVID 19.  Your employer can even take your temperature.

You should immediately notify your school if you have any of the following symptoms:

• Fever
• Fatigue
• Cough
• Sneezing
• Aches and pains
• Runny or stuffy nose
• Sore throat
• Diarrhea
• Headaches
• Shortness of breath

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.

Do I have to wear a mask if I am working in my school building?

If your employer asks you to wear a mask you should do so.  You also have the right to wear a mask even if not directed to by your school administration should you feel that it is important for your safety or the safety of those around you.

The CDC recommends the use of cloth face coverings in public settings where it is difficult to maintain social distancing.  cdc.gov/.../cloth-face-cover.html

Can I refuse to go back to work if my district or school says I have to return before I think it is safe?

Probably not.  Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Basically, you must show that there is an immediate or imminent threat of harm where death or serious physical harm could occur within a short time.

Because the safety of your return depends in part upon personal circumstances, you should reach out to AAE Legal if you believe your employer’s request for you to return to work places you in danger.

Where can I find out more?

Federal, state, and local government agencies are the best source 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 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