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School HR & Employment: Legal Considerations for 2021
COVID-19 imposes extraordinary and unforeseen challenges in schools nationwide. These demands are not limited to the classroom – human resource professionals and other administrators are forced to address unique employment circumstances, and even new law, while schools work hard to implement educational services in a new and changing medium. In a recent webinar, leading school law litigator and professor John Comegno dove into many of the most pressing COVID-19–related concerns and offered practical suggestions to manage school human resources in the current climate.
The 90-minute webinar is available on-demand here. But with so many topics covered in one webinar, you might appreciate scanning through some of John’s guidance, his answers to audience questions, and results from live poll questions below.
When you’re thinking about employee travel — whether that’s travel restrictions or simply asking employees about their travel — John recommends prioritizing the standard of care. Doing so helps defend your district in the event of the school or district being sued.
Standard of care: Your responsibility in schools is to exercise a measure of care to avoid risk and keep people safe that a reasonable person would do under a given circumstance.
Upholding a standard of care expands to other pandemic-related topics: asking employees about temperature checks and symptoms, mask mandates, PPE, and accommodations.
You can direct employees to be safe and follow public health recommendations against certain travel, but you likely can’t “enforce” that direction if employees do not follow the directive. And remember — schools may also take disciplinary action against employees who ignore or violate direction, even if without authority to prevent that employee from taking that trip or engaging in off-campus social activity discouraged today.
The natural follow-up question: What is defensible?
The U.S. Department of Labor indicates that employers may direct employees to provide certain information, including:
- Specific questions related to the health and safety of employees
- Whether an employee is experiencing symptoms
- Whether an employee tests positive for COVID-19
That being said, John reminds us that you cannot ask employees to provide information about their family members. But you can ask them to tell you whether they’ve been in contact with someone who has experienced symptoms.
Audience Responses to Poll Question #1
My biggest COVID-19 HR concern right now is:
FFCRA/EPSL: WHAT’S YOUR RESPONSIBILITY AS AN EMPLOYER?
The Families First Coronavirus Response Act (FFCRA), with its provision of emergency paid sick leave (EPSL), expired on 12/31/2020. Schools are no longer required to grant that emergency sick leave. That said, John mentioned that you may consider providing credit to folks who did not use their accumulated EPSL time in 2020. Or you may want to exercise discretion to provide local emergency paid sick leave or additional time. Of course, employees don’t want to lose a paycheck, and having EPSL time encourages employees to be open and honest about whether they test positive for COVID-19.
Audience Responses to Poll Question #2
As of January, 2021, FFCRA/EPSL COVID-19 leave:
When considering offering additional sick days, be consistent with all employees, and consult your state department of labor and state department of education. John offered his home state, New Jersey, as an example: New Jersey’s employment law contains language related to potential contagion and public health crises.
ACCOMMODATIONS: COVID-19’S IMPACT
Employee accommodation under Section 504 or ADA have never been clear-cut for districts, and the pandemic has only added to the complexity.
And much of the burden falls to you as the district to navigate: What are “reasonable” accommodations? John listed the following commonly granted accommodations as examples:
- One-way aisles
- Remote work
Of course, when considering accommodations during the pandemic, John suggests you keep in mind the impact of loss, isolation, and workplace unpredictability — switching between virtual and in-person learning. It’s advisable to plan ahead and proactively ask your employees what they need. And remember to always engage in the “interactive process.”
HIPAA, FERPA, AND THEIR BOUNDARIES
Audience Responses to Poll Question #3
The most important COVID-19 employee confidentiality issue is:
Employee medical information must be kept confidential and separate from your general employee information. Examples of this confidential information would include COVID-19 test results and temperature checks.
VACCINATIONS: TO MANDATE OR NOT TO MANDATE?
John advises that, as of January 2021, considering the FDA’s “emergency” approval and a lack of widespread availability, it’s too early to mandate that employees get the COVID-19 vaccine. That said, schools may consider such mandates in the future, as there is legal precedent for vaccine mandates in employment. Of course, there are always religious and medical exemptions for vaccinations.
Audience Responses to Poll Question #4
Can schools mandate the employee COVID-19 vaccine?
John answered so many great questions from the audience throughout the webinar, so you should check out the on-demand version if you have a question on your mind, but below you’ll find a few audience questions along with John’s answers:
1. One of our employees disclosed to us that their child was exposed and is exhibiting symptoms. Can we or can’t we instruct them to inform us when their child gets their results?
Focus on the employee rather than their child. You may instruct the employee to quarantine based on their close contact with someone with symptoms. And you could ask them to tell you if they confirm they were not exposed (because their child may have been tested). But all these questions should focus on the employee — not the child.
2. Are employees entitled to FCRA or other leave due to adverse effects from the vaccine?
FCRA no longer applies, but your district may grant courtesy leave. Of course, that person could also access accumulated sick leave for that purpose.
3. How does worker’s comp factor in if an employee claims they were exposed at work?
Worker’s comp often does not apply to contagious illness because it’s difficult to legally demonstrate the relationship between the illness and the place of employment — most employees are going elsewhere while working (i.e., grocery store), so it is hard to prove that the illness was absolutely transmitted at work.
4. When thinking about accommodations, does it matter whether an employee is per diem or not?
First, look at the contract, job duties, and nature of accommodation. It’s not recommended to deny an accommodation based simply on status as per diem. Always engage in the interactive process: Why does the individual need the accommodation? As the employer, it’s up to you to make a determination about whether or not the need is there, and whether or not that need is reasonable.
5. Nurses are currently administering COVID-19 tests — how long should the results of those tests be saved?
Like any of your other files, you should maintain them consistently. The way you maintain COVID-19 test results should reflect the way you maintain absences, nurse office visits, and more. You should have confidential, secure storage for employee and student “medical” data.
Closing thoughts from John
You’re facing so many complicated challenges related to COVID-19 that it can be easy to lose sight of your “why.” Why do you want to support your staff? Why do you work tirelessly to improve everyday efficiencies? Here are a few of John’s closing thoughts to keep in mind as you continue to navigate the complexity of managing “all things” human resources during the pandemic:
- Take care of yourself, not only for yourself, but also for your students and your employees.
- Remember the importance of consistency — err on the side of safety, health, protection, and support.
- Remember the importance of stability.
- Remember the importance of social and emotional learning.
Remember the importance of supporting your employees and leaning on one another in these times.