Hurricane Harvey Resource Page


Commissioner of Education Mike Morath announced that school districts and charters within Gov. Greg Abbott’s 58-county disaster declaration for Hurricane Harvey are eligible to apply for missed school day waivers.

When a public school district is forced to close due to a natural disaster, the closure results in potential lost workdays for the district’s staff. Staff may be concerned about how those lost days will affect their compensation. The Texas Education Code sets a minimum number of minutes of instruction. So, a school district must request a waiver for that requirement if a closure will result in an actual shortening of the school year, rather than just an extension of the year to make up the lost days. The Texas Education Code addresses the effect of this loss of school days on compensation for many staff members, though not all.

First, the Texas Education Code provides that the commissioner of education can reduce the number of school days required in the school year because of a natural disaster.

Texas Education Code §25.081 provides:

(b) The commissioner may approve the instruction of students for fewer than the number of minutes required under Subsection (a) if disaster, flood, extreme weather conditions, fuel curtailment, or another calamity causes the closing of schools.

Commissioner Morath has publicly stated that school districts that have had unexpected school closures as a result of Hurricane Harvey can request these waivers.

The Texas Education Code also provides that if a waiver is granted and the school year is therefore cut shorter than expected, reduced worktime should not result in a reduction of educators’ compensation.

Texas Education Code §21.401 provides:

(c) The commissioner, as provided by Section 25.081(b), may reduce the number of days of service required by this section. A reduction by the commissioner does not reduce an educator's salary. (Emphasis added.)

While this is good news, we must note that the term “educator” that is used in Section 21.401 does not apply to all school district staff. The term has a very specific definition, which is also found in the Texas Education Code.

Texas Education Code §5.001 provides:

(5) "Educator" means a person who is required to hold a certificate issued under Subchapter B, Chapter 21.

Texas Education Code Subchapter B, Chapter 21, provides for the certification of educators by the State Board for Educator Certification (SBEC). SBEC certifies classroom teachers, librarians, counselors, and many administrators, among others. There are some professionals who are employed under a contract, such as nurses, that are licensed by different agencies. There are also staff members, such as paraprofessionals, who are certified by SBEC but are not employed under a contract. These staff members would not fall under this provision that prohibits a loss in salary due to a loss of worktime. However, there may be benefits available to these staff members through the Texas Workforce Commission.

Essentially, the law states that if a school district reduces the workdays in a school year because of a waiver granted by the commissioner due to a natural disaster like Hurricane Harvey, that reduction in workdays cannot result in a loss of compensation for anyone who:

(1) is employed under contract and

(2) is required to hold a certificate granted by SBEC.

The legal information provided on this website is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship. Individual legal situations vary greatly, and readers should consult directly with an attorney. Eligible ATPE members with questions should contact the ATPE Member Legal Services Department using our online contact form.

Public school districts have been affected by hurricane Harvey in many different ways. Some districts are unaffected by the storm itself but will experience an influx of students, displaced from their communities. Other districts have damaged facilities that may take some time to repair, rebuild or replace. Educators may have lost their homes or had other disruptions to their personal lives that may affect their professional lives.

ATPE has compiled this list of questions and answers, covering many issues that educators may face as they are called to return to work. *

What are my rights if I am reassigned to another position because of damage to my school, changes in student population or changes to staff?

There are no specific rules regarding reassignments that are caused by a natural disaster, so the general rules regarding assignments would apply. Generally, your rights regarding your assignment are governed by your employment contract, if you have one. For more information about your rights regarding your assignment, please see:

www.atpe.org/en/Protection/Legal-Guide/Assignments-Duties.


What are my rights if I have had to evacuate?

Texas law provides protections to employees that have followed an official order or recommendation to evacuate due to a natural disaster, including employees of public school districts.

Section 22.002 of the Texas Labor Code provides:

An employer may not discharge or in any other manner discriminate against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order. Section 22.003 of the Texas Labor Code provides that an employer who violates Section 22.002 “is liable for any lost wages and employer-provided benefits incurred by the employee as a result of the violation.” The Section further states that an employee discharged in violation of Section 22.002 “is entitled to reinstatement in the same or an equivalent position” with equivalent pay.

The law only protects employees where there has been an official “emergency evacuation order”. The law also defines this term, stating:

“Emergency evacuation order” means an official statement issued by the governing body of this state or a political subdivision [examples: counties or cities] of the state to recommend the evacuation of all or part of the population of an area stricken or threatened with a disaster. The term includes a local disaster.” Texas Labor Code §22.001(2).

Note that the law references a recommendation for evacuation, so the evacuation order does not have require evacuation for the job protections to apply.

The law does provide an exception for emergency personnel as long as the employer provides emergency shelter. The law also specifically exempts individuals “necessary to provide for the safety and well-being of the general public, including a person necessary for the restoration of vital services.”

More information can be found on the Texas Workforce Commission website at:

www.twc.state.tx.us/jobseekers/emergency-evacuation-discrimination.


What are my rights if my personal belongings at school were lost or damaged?

If you had personal belongings in your classroom or school, the district will not be legally responsible for any loss. The law generally requires that before a party suffering a loss can require another party to compensate for that loss they must prove that the other party was legally responsible for that loss. In the case of hurricane Harvey, it would be very difficult to prove that the district was responsible for damage caused by the storm. Even if it was possible to establish that the district had been somehow negligent, the district, as a governmental entity, is generally immune from liability caused by negligence.

It is possible that a district could have insurance coverage that would provide benefits. It is also possible that you may have coverage through your personal insurance, such as a homeowner’s insurance policy. If you have questions, you should contact your individual insurance agent.

For more information regarding immunity, see:

www.atpe.org/en/Protection/Legal-Guide/Immunity.


What are my rights if I am informed that my district is changing the school schedule to extend the workday or year or require additional workdays during the school year to make up days lost?

Rather than using instructional day waivers approved by the Commissioner of Education to shorten the instructional school year, a district may choose to lengthen the school day or add extra instructional days into the year, either by delaying the end of the year or by adding days into the year, or both.

A change in work schedule depends foremost on whether you are employed under an employment contract. If no contract exists, the district, as an employer can generally change the work schedule at its own discretion. If you are employed under a contract it depends significantly on what the contract says. Many educator contracts include language that may allow the school board to adjust the work schedule to some degree.

For more information regarding changes to the work schedule, see:

www.atpe.org/en/Protection/Legal-Guide/Contracts-At-Will-Employment.


What are my rights if I am asked to assist in a school cleanup?

There are no specific rules regarding duties related to a natural disaster such as hurricane Harvey. Like more permanent changes to assignments, a requirement to assist in cleaning up a campus would first depend on individual considerations such as assigned position, contract status and any specific physical limitations or restrictions that might exist.

A second, separate but related consideration would be what type of cleanup is being considered and when it is scheduled. Is the cleanup limited to sweeping or does it involve removing debris that could be dangerous? Finally, as noted above, there are separate protection for employees who cannot return to work because they have complied with an evacuation order.

For more information regarding individual assignments, see:

www.atpe.org/en/Protection/Legal-Guide/Contracts-At-Will-Employment.

 

* The legal information provided on this website is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an attorney. Eligible ATPE members with questions should contact the ATPE Member Legal Services Department using our online contact form.

Many school districts have been affected by Hurricane Harvey and, due to the extent of the damage in some areas, it may be some time before the affected districts are back to normal. This will result in district staff being unable to work, potentially for an extended period. Some staff members may not actually see this affect their compensation (see section above on how school closures can affect compensation for details). However, other staff members may find that since they are not working, they also are not being paid.

Disaster Unemployment Assistance is a little-known benefit provided by the Texas Workforce Commission. Public school employees who lost their jobs or who are no longer working as a direct result of a major disaster for which a disaster assistance period is declared, and who have lost income as a direct result of the disaster, may be eligible for unemployment benefits through the Disaster Unemployment Assistance program.

It is important to note that the TWC recommends that individuals who believe they may be eligible for benefits submit a claim as soon as possible as the benefits are not completely retroactive.

Additional information, including eligibility requirements and instructions for applying for the benefit, can be found on the Texas Workforce Commission website.

The ATPE Educators Professional Liability Insurance Policy (EPLI) is underwritten by National Union Fire Insurance Company of Pittsburg, PA. All coverage is subject to the EPLI terms, conditions and exclusions. The information provided here does not constitute legal advice or an attorney-client relationship. Benefits provided under the EPLI do not apply to claims involving unemployment benefits. View the full details of the coverage www.atpe.org/en/Protection/Legal-Benefits/Policy-Summary.

ATPE members have generous spirits and many have contacted ATPE asking about the best way to make a difference. Any time you make a donation, you want to ensure that those affected by the disaster are getting the goods and services they need most; and that the financial assistance is sent to the communities where the need is greatest.

With this in mind, ATPE strongly encourages members to donate to a reputable charity with a strong track record of assisting Texans during a disaster. For your convenience, here are links to the American Red Cross and the Salvation Army. You can also research the reputation of other charities by visiting Guidestar.

Disaster responders are also pleading with donors to think before donating items such as used clothing, furniture, etc. Here are two powerful articles that describe how the best of intentions in donations can become the “disaster after the disaster.”

How Stuff Works shared this article on the 10 worst things to donate after disaster: And in an older article, NPR described how donations can quickly overwhelm volunteers.

On Aug. 26, the US Small Business Administration activated its disaster loan program for 18 counties in Texas

The Texas Education Agency has created a resource page, which included a “Frequently Asked Questions” section. The TEA resource page can be found at:
http://tea.texas.gov/About_TEA/Other_Services/Weather_and_Disaster/Hurricane_Harvey_Resources/