School Reopening and Labor and Employment Matters
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On June 29, 2020, the State of Connecticut issued “Connecticut’s Learning Plan to Learn and Grow Together” (the “Plan”).  To say the least, the Plan sets forth a myriad of requirements that school districts must complete in order to open in the fall.  By July 24th, school districts must submit an “Operations Plan” to the State Board of Education.  These requirements include: having a plan for continued distance and “blended” learning, facilities maintenance, safety and cleaning, containment protocols to prevent the spread of COVID-19, instructional planning and contingency plans in case of a confirmed case (or cases) of COVID-19.

These requirements will no doubt affect the working conditions, at least to some extent, of some school district employees.  The Plan appears to anticipate this, guiding school districts to “consider whether Memoranda of Understanding (“MOUs”) are appropriate or necessary to define the role for different staff units in the context of the COVID-19 pandemic.” So, what are some of the labor and employment issues school districts may face?

Consider first what happens if a staff member has symptoms of COVID-19.  Obviously, the staff member must stay home.  But for how long?  The Plan does not definitively answer this question.  However, it ”guides” districts to follow the Center for Disease Control’s (“CDC”) recommendations for staff who have been exposed to COVID-19.  Those recommendations state that symptomatic individuals should stay home for at least 3 days after the fever has resolved, without the use of medication and for at least 10 days since the start of the fever.  Alternatively, the CDC says they can return after the symptoms resolve and the employee has received two negative COVID-19 tests in 24 hours.  Those without symptoms who were exposed to COVID-19 should stay home for 14 days after his or her last exposure. School districts would be well-advised to take a conservative approach.  A symptomatic employee may miss a fair amount of time from work.  This triggers the next issue- how is that employee to be treated while absent?

Any staff member who misses work with COVID-19 symptoms must be treated with confidentiality. The Plan requires employers to “maintain all information about employee or student illnesses as a confidential medical record.”  Likewise, it is necessary to preserve the confidentiality of this information to comply with the Americans with Disabilities Act (“ADA”).  And, speaking of the ADA, school districts as employers need to determine under what circumstances a staff-member requires accommodations during his or her absence, both in response to having had the illness and in response to the employee’s assertion of a heightened vulnerability.  This may require school districts to assess whether the staff member can work from home, as an accommodation and engage in an interactive process to determine whether any other accommodations are needed for this employee.

Is that it?  Still no. If a symptomatic employee seeks medical attention to determine if he or she has COVID-19, they are likely eligible for payments under the Emergency Paid Sick Leave Act (“EPSLA”).  Under EPSLA, employers must pay employees their daily wages, capped at $510 per day for the first two weeks/10 work days of their absence.  For those who have accrued sick days and earn more than $510 per day, employers may allow employees to use their sick time so that they can earn their regular salary. 

But these are not the only issues that school districts can expect will trigger bargaining requests from their local unions.  Given the many requirements of Connecticut’s Plan, it is highly likely that school districts will receive requests to bargain from some or all their local unions.  While by no means an exhaustive list, a cursory review of the Plan reveals that matters that could trigger a bargaining demand include the following:

  • The work rules concerning the manner, extent and method of any continued remote instruction or “blended learning” during the 2020-2021 school year;
  • The treatment of at-risk employees who fear returning to in-person school;
  • Safety issues, such as the duty to provide masks and face shields, for those who may have close student contact and for those required to perform cleaning tasks;
  • Potential increases in work load due to meeting the requirements of the Plan;
  • Policies for handling staff who are sick, have been exposed to COVID-19 or are caring for a sick family member;
  • The monitoring of school buses;
  • Any required employee training; and
  • Possible temperature testing depending upon the input from local health officials.

As noted above, the State appeared to have anticipated these issues by suggesting school districts consider entering into MOUs with its bargaining units.  However, school districts should not rush into an MOU without due consideration.  Depending upon the circumstances, some of these issues may present mandatory subjects of bargaining that would require the school district to bargain with its local union(s).  In other circumstances, they may not.  Some issues may present a de-minimis change in workload.  Some issues may already be covered by the applicable collective bargaining agreement and some actions may simply be a management right to implement.  Therefore, school districts would be well-advised to consult with counsel in order to determine the best road to travel as they face any given set of issues. 

Next, as if school districts do not have enough to do in such little time, the Plan requires school districts to “[P]repare with school human resources and board counsel to comply with legal and regulatory requirements related to personnel, including but not limited to the EEOC guidance related to the ADA and the COVID-19 pandemic.” Interpreted broadly, this may require school districts to meet their collective bargaining obligations as a condition for reopening.  If such is the case, school districts should, at the very least, be in the process of negotiating the necessary changes that arise by adhering to the requirements of Connecticut’s Plan.  Accordingly, as school districts work to implement a plan to reopen, they may be well-served in seeking the advice of counsel and initiating contact with their local unions, rather than waiting for the unions to approach them.  The attorneys at Pullman & Comley, LLC are ready and willing to assist school districts in these endeavors.

Finally, the Plan states that because the circumstances around COVID-19 are continuously evolving, the guidance in the Plan is “preliminary” and that “this preliminary guidance will likely evolve and be amended or supplemented.”  Therefore, there may be more to come on this topic.  Stay tuned. 

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s School Law practice on federal and Connecticut law as it pertains to educational institutions, whether those institutions be public school districts, private K-12 schools, or post-secondary colleges and universities.

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