Are Certain Teachers Exempt From Return To School Orders? Lawyers Weigh In
The thought of the returning school is a fraught one. The fear of COVID-19 infection is palpable for both parents and teachers, and many educators feel like they’re being asked to be frontline workers. But while children in many districts across the nation are being given the option to opt out of in-classroom learning in exchange for virtual lessons, teachers face a trickier decision. If they return to the classroom, they risk illness. If they refuse, some worry they’ll lose their jobs. But are any teachers exempt from returning to the school classroom? Romper spoke to 2 legal experts to find out.
A Kaiser Family Network study found that 1 in 4 teachers, approximately 1.5 million people, are considered "at-risk" of serious illness if they are infected with COVID. Individuals who have diabetes, chronic obstructive pulmonary disease (COPD), heart disease, moderate or severe asthma, a body mass index (BMI) of greater than 40, or a compromised immune system" fall under the "at-risk" category. Taking into account that the United States has 3.2 million full-time teachers, according to Education Week, everyone should be alarmed. But choosing to forego in-classroom teaching isn’t as simple as merely calling in sick. While employment law attorney Philip Villaume of Bloomington, Minnesota’s Villaume & Schiek, P.A. says that teachers do have protections, getting legal exemption can be an paperwork obstacle course.
Normally, public school teachers are obligated under their contracts with their districts to return to school. “However, with the pandemic, if some of these teachers are at risk because of medical conditions, then they don’t have to return and can’t be retaliated against,” says Villaume.
The key phrase here is “medical conditions.” Just being fearful of returning to the classroom isn’t reason enough, North Carolina employment attorney Mary-Ann Leon tells Romper by phone.
“High risk may be due to a chronic condition that would qualify for some protections under the Americans with Disabilities Act (ADA),” says Leon. “The Americans with Disabilities Act requires an employer provide reasonable accommodations for those that have disabilities covered by the act. And that law is still in force even during a pandemic.”
So what constitutes a medical condition risky enough to earn an exemption? That may be up to individual districts to decide and could vary greatly from state to state. Ultimately, a teacher’s first recourse is to seek a medical professional’s opinion and be prepared to "provide medical documentation to the school district," says Villaume.
Leon encourages teachers to not just get a check up but to go into detail with their medical provider about all of their pre-existing conditions be it hypertension or pulmonary issues. The burden of proof is to show that not only is a teacher more susceptible to a COVID-19 infection but that if they contract the virus that they would be substantially certain to have very, very serious injuries or permanent damage. Leon adds that as of June 2020, the U.S. Equal Employment Opportunity Commission’s (EEOC) position is “that this heightened risk is an impediment to working for somebody with a disability and that the employer has a duty to accommodate.” What the accommodation should be, however, depends on the workplace.
The truth of the matter is, some schools will be able to easily adapt to remote learning for a teacher who requests accommodations while others won’t. And the situation gets even more complex, Leon says, in the case of special learning circumstances. “I don't know where we are when it comes to dealing with exceptional children and whether or not they can be accommodated in that way” says Leon. There’s also the issue of how to accommodate a teacher of children without access to computers or the internet.
So what’s a teacher to do? Be their own advocate, Leon says.
Step one: They need to start the process with the ADA. Step two: If they believe their school district is ignoring guidelines, Leon says, they should reach out to various government bodies including the Department of Labor, the governor's office, which has a task force at the Department of Health and Human Safety, and the Health Department.
“I would encourage teachers to seek assistance from those kinds of governmental agencies,” says Leon.
There’s also the option for teachers to use the Family Medical Leave Act. The Emergency FMLA (E-FMLA) is paid leave that allows qualified “employees for school/childcare closure for up to 400 additional hours (10 weeks) if they have been employed for at least 30 days.
In addition, teachers can look into the Families First Coronavirus Response Act. This act requires that certain employers provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 and is applicable through December 31, 2020. This means that if an employee contracts COVID or is caring for a family member who has the disease, they can still get paid partial or full salary for up to 80 hours.
For private school teachers, securing return to school exemptions may be a whole other ball game. “Private schools are mandated by laws set down by the state as it comes to the pandemic,” explains Villiume, so teachers would need to look at what steps to take based on state regulations in addition to reviewing their contracts with their school.
“I would suspect that if a private school is insisting that somebody return to work and the person — put aside the ADA for a minute — doesn't have any any other reason to stay back except that they are afraid, they may be subject to being let go because they would be in breach of their contract,” says Leon. That said, ADA rules and FMLA rights still apply regardless of whether a school is private or public, so a private school teacher still has some options should they be high risk.
Bottom line, right now Leon and Villaume recommend that all educators stay attune to CDC guidelines, updates from their districts, and state regulations, and plan accordingly. If they are a member of a teachers union, then both legal professionals recommend reaching out to those organizations first. Those groups have lots or resources (including attorneys) on staff who will often provide free consultations. Short of that, a teacher should reach out to an employment attorney with experience working with educator clients.
Philip G. Villaume, Esq., Villaume & Schiek, P.A., defendmn.com/attorneys/philip-g-villaume/
Mary-Ann Leon, Esq., Leon Law Firm, leonlaw.org/meet-mary-ann-leon/
"How Many Teachers Are at Risk of Serious Illness If Infected with Coronavirus?", Kaiser Family Foundation