Education Week - November 25, 2020 - 6

By Mark Walsh
Kye Garcia was in the first year
of teaching last school year when a
COVID-19 infection led to three harrowing months in the hospital. The
27-year-old special education teacher
in Springfield, Mass., is still undergoing physical and occupational
therapy, along with regular medical
tests to treat lingering effects of the
infection, which include a paralyzed
vocal cord and lasting lung damage.
Despite that, Garcia, who uses
they/them pronouns, headed back to
teaching remotely along with other
Springfield teachers when the new
school year began this fall. But as
the district has considered moving
to hybrid learning that would include
some in-person instruction, Garcia
has made clear that they do not feel
safe returning to the classroom. They
say the school system has been slow
to guarantee they would have such an
accommodation.
" I said that whenever we go back to
the classroom, I can't do it, " said Garcia. " No one should have to choose
between their job and their life. "
For districts and anxious teachers
and other school employees, however, there are a host of legal requirements to take into consideration in
navigating what can be demanded
when moving staff back into on-site
schooling amid the still-raging crisis.
" Nine months into this, we are still
in uncharted territories because of
the pandemic numbers, the lack of
federal leadership, and the lack of
clear mandates for health and safety
protocols, " said Alice O'Brien, the
general counsel of the National Education Association, the nation's largest teachers' union.
Francisco M. Negrón Jr., the general counsel of the National School
Boards Association, said, " The employment piece of reopening schools
has been critical, whether a school
district is in a collective bargaining
state or a so-called right-to-work
state. "
" School districts are taking the
safety of their employees very seriously, " he said.

Applying the Laws
While COVID-19 has presented
some unprecedented questions regarding district operations and employee rights, many of those questions are being resolved by applying
existing laws and regulations with
perhaps minor modifications to account for the pandemic.
" Some of those issues raise largely
unprecedented factual questions
under existing law, " said John E.
Rumel, a law professor at the University of Idaho in Boise and the former
general counsel of the Idaho Education Association. " Other issues pose
relatively familiar factual scenarios
under laws modified to address COVID-specific contexts. "
Rumel presented a paper on
COVID-19 school employment issues

earlier this month at the Education
Law Association. Another presenter
was Carolyn N. McKenna, a partner with McKenna Snyder LLC, an
Exton, Pa., law firm that represents
many charter schools in Pennsylvania.
" There are so many scenarios we're
seeing, " said McKenna. " Communications, starting these conversations,
is the key. "
Advocates on both the labor and
management side suggested there
was common ground in a number of
key areas of school employee rights
during the pandemic. Among them:
Accommodations for disabilities-With many schools having
reopened for in-person instruction,
some educators have sought accommodations under which they may
work remotely. Such scenarios are
largely governed by the Americans
with Disabilities Act of 1990, advocates say.
" The ADA is a minimum standard,
and it is rather exacting, " said Rumel.
" You do have to be a qualified individual with a disability. "
He says that in the midst of a highly
contagious pandemic that is affecting people with underlying health
conditions more severely, a teacher
with an underlying health condition
identified by the U.S. Centers for Disease Control and Prevention as putting them at more serious health risk
would be considered to have a qualified disability.
Flynn points out that another issue
coming up is school employees who
don't themselves have an underlying condition but live with a parent,
spouse, or child who does. But employees would not be entitled to an
accommodation because someone
in their household was at risk, advocates said.
Also, while age has been a risk factor for COVID-19 complications, it is
not a protected category under the
ADA. And while another federal law,
the Age Discrimination in Employment Act, aims to fight age bias, it
does not include any provisions for
reasonable accommodations based
on age.
Flynn says that even though some
employees might not be covered by
the ADA, " that doesn't mean there
can't be a conversation between the
employer and employee. "
Family and medical leave-The
Families First Coronavirus Response
Act, passed by Congress in March,
temporarily provides employees with
paid sick leave and expanded family
leave under the existing Family and
Medical Leave Act for reasons related
to COVID-19.
Under the new law, said Rumel,
teachers and other school employees
are eligible for the sick leave at their
regular rate of pay if they are experiencing symptoms or they are quarantined pursuant to federal, state, or
local law or on doctor's orders. Such
employees are eligible for expanded
family leave at two-thirds their regular pay to take care of a family mem-

6 | EDUCATION WEEK | November 25, 2020 | www.edweek.org

Rick Bowmer/AP

Pandemic Is a Workers' Rights Issue for Schools

Junior high teacher Angela Andrus attends a Utah Safe Schools Mask-In urging the governor's leadership earlier this
year as officials prepared for school reopenings during the COVID-19 pandemic.

ber with COVID-19 or to take care of
a child whose school or care provider
is closed due to the pandemic.
O'Brien notes that the emergency
leave provisions are expiring as of
Dec. 31 unless Congress and the
president act.
" We have a lot of districts in yo-yo
situations in which they are open and
then they are closed, " she said. " And
we have some teachers who have been
quarantined more than once. That
leaves some questions about the leave. "
In states with collective bargaining
and robust contractual leave provisions, " those questions will be dealt
with, " O'Brien said. " In states that
don't have collective bargaining and
strong leave rights, there will be a fall
off the cliff. "

Legal Action Continues
Legal conflicts also may shape the
debate.
In October, the Georgia Association of Educators, an NEA affiliate,
sued Gov. Brian P. Kemp, a Republican, alleging that a push to reopen
schools for in-person instruction is
putting school employees at risk.
" Educators, education support professionals (e.g., bus drivers, cafeteria
workers, custodial staff), and their
families face serious risks from the
resumption of in-person instruction
without adequate safeguards given
that their work involves being indoors
or in other, more limited enclosed
spaces like buses, with large numbers of children and other employees
throughout the day, " says the GAE
suit, which is pending.
In Chicago this month, an arbitrator upheld a grievance brought by the
Chicago Teachers Union, an affiliate
of AFT, against a requirement by the
Chicago Public Schools that certain
employees go to work in school buildings even though all instruction is
being delivered remotely.

" I find reporting to work inside
CPS school buildings at this time
increases the danger of infection by
COVID-19, an airborne, highly communicable, deadly, and still not fully
understood disease, " the arbitrator
wrote. " The only way to eliminate the
risk of COVID-19 infection and death
is for school clerks, school clerk assistants, and technology coordinators to
work remotely. "
The Chicago school system has said
it has improved safety conditions in
its buildings and still expects those
particular groups of school employees to work on site most days. Last
week, the school system and Chicago
Mayor Lori Lightfoot announced that
it plans to bring some students back
for in-person instruction on Jan. 11.
The teachers' union criticized the
decision.

'The Next Day I Was Gone'
Garcia, the Springfield, Mass.,
teacher, tested positive for COVID19 just days after the district's schools
had shut down for the coronavirus in
March. Garcia had just begun helping
classes of " substantially separate "
special education students navigate
the early days of remote learning.
" One day, I was answering parents
about what their children should be
doing, and the next day I was gone, "
said Garcia, who spent 39 days in intubation, not getting out of the hospital until after last school year was
over. The school district did not inform students or even other employees of Garcia's status.
Garcia resumed remote instruction
at the beginning of this school year,
while pushing for an answer on an accommodation under the ADA to stay
out of school if in-person instruction
resumed.
" I was told my name was on a list
of teachers who cannot go back, " but
there was no firm confirmation of an

accommodation, Garcia said.
The Springfield district, which has
about 26,000 students and 4,500
employees, is considering a return to
in-person instruction, at least in the
hybrid model, said district spokeswoman Azell Cavaan.
Garcia's school, John F. Kennedy
Middle School, is one of 13 secondary schools that are part of the
Springfield Empowerment Zone
Partnership, a collaboration among
the district, the state Department of
Elementary and Secondary Education, and the Springfield Teachers
Association with its own union contract and governing board for those
schools.
Matthew Brunell, the co-executive
director of the partnership, said he
could not discuss any particular employee's situation, but said the partnership has " reached out to all teachers and support staff to ask about
underlying conditions they may have
to be able to make accommodations
for them. "
" That would allow them to work
in a capacity that was student-facing
and student-supporting but not have
to be in the buildings, " he added.
" On accommodations, these questions are being taken up right now.
The great emphasis at the start of
the school year was ensuring that
educators and students were gaining
comfort in being in a remote environment. I don't think we have given
the same amount of attention to what
the return to [in-person] learning
will look like. "
Garcia would prefer not to see a
rush to return to classrooms given the
resurgence of the virus, even with an
accommodation to stick with remote
teaching.
" Even if I don't have to go back, I
don't want anyone to have to go back "
amid the pandemic, Garcia said. " My
first year of teaching was almost my
last. "

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Education Week - November 25, 2020

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