COVID-19 FAQs and Resources for Texas Educators

The answer is "not necessarily." Chapter 554 of the Texas Government Code, commonly known as the Texas Whistleblower Act, protects individuals who in good faith report possible legal violations by public entities, such as a public school district, from retaliation. But these protections only exist when the reporter has followed specific procedures required by the law. For instance, the report must be made to a governmental entity that has official responsibility for enforcing the law that was possibly violated. This determination can sometimes be complicated as it is not always clear what governmental entity has official authority to enforce a particular law. Reports posted on social media or shared with the media in general would not be protected as they are not directed to an appropriate enforcement entity.

Teachers and other staff should be aware a school district or district representative is generally not recognized as a proper law enforcement entity, so a report made to a principal, superintendent, or school board may not be protected. In addition, the whistleblower law protects only reports of alleged violations of law. A district’s own locally adopted rules and guidelines are not considered "law," so a report that these local rules are not being followed would not be protected by the whistleblower law.

Generally, a public school district is not required to allow a staff member to be absent simply due to concern regarding an illness. However, if a staff member has a health condition that would make an illness such as the coronavirus particularly dangerous, such as a compromised respiratory system or diabetes, the district could be obligated to consider allowing remote work as a reasonable accommodation of a disability under the Americans with Disabilities Act (ADA).

The ADA requires employers to address an employee's request for a reasonable accommodation to their normal working conditions due to the existence of an impairment that "substantially limits a major life activity." While the ADA is complex and is consistently evolving, it is widely understood that if a doctor recommends a teacher or other staff member not return to work due to their being at greater risk because of documented health conditions, and the doctor establishes the condition as a disability, the teacher may be able to seek an accommodation under the ADA, such as requesting remote working, if it is available.

In anticipation of the eventual return to in-person work, many public school districts have already distributed questionnaires asking whether individual staff members believe they have a condition that may require an accommodation. Many of these surveys note a human resources representative will follow up if the reply notes a possible need for an accommodation.

Typically, when a staff member requests an accommodation, they are required to provide supporting documentation. In this case, this would likely be written certification from their doctor of a health condition that requires certain precautions because it creates additional vulnerability to COVID-19.

When a staff member requests an accommodation under the ADA, an employer is required by law to enter an "interactive process," considering the medical certification the accommodation request and the employer's ability to provide the accommodation. The district could propose a different accommodation: For example, the district may reply to a special education aide that there is no remote work available, so they may offer an accommodation involving limited contact and the use of PPE. While public school districts are required to and generally do respond to accommodation requests quickly, it is very possible response times may be slower than usual due to the number of requests being received.

Finally, because an employer is only required to provide "reasonable accommodations," there is no bright line as to what the employer must agree to in a given case. The ADA is specific that an employer is not required to displace another employee to create an open position nor remove essential job duties as an accommodation. Whether an accommodation can be found will depend not only on the employee's disability but also on the availability of a workable accommodation.

The possible return to working in person, whether in the classroom or a district office, has increased concerns about what leave options exist if a person either becomes ill or is required to quarantine because of a possible exposure.

At the time of this writing, there are additional leave options beyond the normal state and local sick leave days; however, there is no guarantee that all absences will be paid.

State Personal Leave
The Texas Education Code requires that districts provide five days of paid personal leave per year. The state-required personal leave is characterized as either discretionary (voluntary) or non-discretionary (involuntary) leave. Districts can place restrictions on the use of voluntary leave, but generally, if the absence is not under the control of the staff member, a district must allow the use of available personal leave.

Local Sick Leave
Many districts provide sick leave in addition to the five state personal leave days. Most districts provide five local sick days, but the number provided is determined locally by the district’s board of trustees. Most districts treat local sick leave days in a way that they would be usable for a staff member who was ill or likely required to quarantine. But, as these days are locally provided, each district determines the terms of eligibility.

Leave Specific to COVID-19
The Families First Coronavirus Response Act (FFCRA) went into effect April 1 and remains in effect through December 31, 2020. Two provisions are most important to teachers and other district staff members:

• The Emergency Family and Medical Leave Act expands the Family and Medical Leave Act (FMLA) to cover some situations specific to the novel coronavirus, such as a parent’s need to care for their children who would normally be in school or childcare.
• The Emergency Paid Sick Leave Act provides a legal entitlement to paid sick leave for some employees who are absent for work due to certain coronavirus-related reasons.

To learn more about the leave options provided, read ATPE’s analysis of these two new laws.

Paid Administrative Leave During Required Quarantine
In addition to the leave options described above, many districts have adopted Policy DBB, which provides that the district may require a medical examination when the district is notified an employee has a physical impairment that could be a health or safety threat to others. The policy may provide that the district may place the employee on paid administrative leave while waiting for the examination results. Many factors could dictate whether a district would place a particular employee on paid administrative leave, so it is not possible to guarantee that every staff member required by a district to quarantine will be placed on paid administrative leave.

Teachers and most other employees are protected from personal liability for injuries under both Texas and federal law. Texas Education Code 22.0511 provides that “a professional employee is not personally liable for any act that is incident to or within the scope of that employee’s position of employment that involves the exercise of judgment or discretion on the part of the employee.” The only exceptions relate to student discipline and the use of a motor vehicle.

Texas Education Code 22.051 defines “professional employee” as a superintendent, principal, teacher (including a substitute teacher), supervisor, social worker, school counselor, nurse, teacher aide, school bus driver licensed by DPS, student teacher, or anyone else whose position requires certification and the exercise of discretion.

Federal law generally provides immunity to a school employee who acts in good faith.

It is important for teachers and other employees to remember they are likely not the ones deciding what the requirements will be in their local district, but they should be aware of and follow any restrictions that are put in place.

The answer to this question is complicated. Teachers and other school district employees have protections regarding expressing their opinion. The most important is the right to expression protected by the First Amendment to the U.S. Constitution. But First Amendment protections are not absolute and do not apply in every situation. The U.S. Supreme Court has ruled the First Amendment does not apply when a government employee (all public school employees are government employees) comments on a matter involving his/her own job duties. The First Amendment only applies to comments made as a citizen.

In addition, even where the First Amendment does apply, the U.S. Supreme Court has ruled that there is a “balancing test,” where the employee’s right to express his/her opinion is weighed against the disruption that results from that opinion. There has to be some actual disruption—mere unhappiness by some may not be enough. But, if the speech affected teachers’ ability to effectively communicate with each other because of differing views, it is possible that serious negative consequences could result because of this balancing test. In addition, it is almost always best to express concerns professionally. Although the First Amendment might provide protections from termination or other serious employment consequences, educating students is a very team-oriented project, and the ill will that can result from extreme or offensive communications can both make the workplace a very unpleasant place and actually hurt the education the students will receive.

Absolutely, yes. Even if an educator has already signed a contract for the upcoming school year, teachers and most other certified professionals can resign from their current school district as long as they submit notice of their resignation at least 45 calendar days before the first instructional day of the next school year. Because that deadline is based on the date instruction begins, a change in that date will also change the deadline for resignation. Many local school boards have considered changing the first day of instruction, which means the resignation deadline may arrive earlier or later.

Teachers and other certified educators should keep a close eye on these changes if they are considering leaving the district. After the deadline, a teacher must be released by the district or may face sanctions to their certification.

The State Board for Education Certification (SBEC) recognizes that there are circumstances that would constitute “good cause” for a teacher or other certified educator to resign after the deadline without receiving a release from the district. The situations that can constitute good cause are listed in the Texas Administrative Code. The list includes a “serious illness or health condition of the educator or close family member of the educator.” As the pandemic is a unprecedented situation, there is no history to let educators know what to expect, but teachers and other contract employees who have verified health concerns that may be affected by specific district assignment decisions may have good cause to resign without sanction rather than putting their health at risk.

You can find more information regarding resignations, including timing, process, and possible sanctions, at atpe.org/en/Protection/Legal-Guide/Resignations.

What a district is required to do depends to a great extent on whether the actions are preventive (prior to a confirmed exposure) or remedial (after a confirmed coronavirus exposure). What is required will depend on the district’s emergency operation plan and any guidance from other entities, such as the local health department.

The Centers for Disease Control and Prevention (CDC) has provided guidance to school districts on cleaning and disinfecting classrooms and vehicles, such as school buses.

Individual staff considering cleaning or sanitizing on their own should recognize that many factors need to be considered, such as possible sensitivities or allergies students or co-workers could have to cleaners, particularly those containing strong chemicals. A good rule of thumb would be to seek guidance from a supervisor or administrator before taking any steps regarding cleaning or sanitizing that would be out of the ordinary.

There is presently no specific legal requirement that staff be notified if an individual has tested positive for the coronavirus. There are also significant general restrictions on an employer or anyone with knowledge of an individual’s medical or health information sharing that information with others, except reporting as necessary to a local health department.

A district is limited in prohibiting personal travel, but teachers and other staff should be aware that travel restrictions have and will continue to evolve as the economy reopens. Mandatory quarantines for visitors to some locations have already been in place, and these may be expanded or continued. Potential travelers need to be aware restrictions may change rapidly, and travel to certain regions or contact with a known outbreak or an individual who has tested positive for COVID-19 may affect an individual’s ability to return to work.

A district can make reasonable inquiries regarding travel if there is a legitimate basis for doing so. For example, a district could ask whether a teacher had traveled to an area where a quarantine was required. The inquiry should be limited to obtaining only the information necessary to determine the likelihood of exposure to a contagion like the coronavirus.

The answer is a big maybe; it depends on what the change is. Many districts have revised their job descriptions to include the duties essential to distance teaching. In most cases, the changes have not been dramatic and have consisted of items related to the new normal of technology-based communication and education without physical contact. There have been instances where districts have stated expectations such as 12-hour workdays.

Teacher contracts universally include a clause that allows the district to make reasonable changes to job duties. If the change to a job description would be considered reasonable, then a district would be on solid legal footing to make the change, even in the middle of a school year. A change in the job description would be considered legally reasonable if it were something a teacher could expect to be required to do. So, developing curriculum, using technology such as Zoom to share lessons with students, and communicating with parents and students are all within the normal expectations of teaching—even if the balance is substantially different now. However, there is more question regarding something like being immediately available and "on call" for 12 hours a day. That is not a normal expectation of teachers. As such, there is a much stronger argument that such a change could not be made during the school year.

Section 28.021 of the Texas Education Code states that “[a] student may be promoted only on the basis of academic achievement or demonstrated proficiency of the subject matter of the course or grade level.” However, state law provides that districts have a great deal of flexibility in determining how that achievement and mastery needs to be demonstrated and can, to a very large extent, determine grading policy locally.

Section 28.0216 of the Texas Education Code states that “a school district shall adopt a grading policy” and that the policy must:

• Require a classroom teacher to assign a grade that reflects the student’s relative mastery of an assignment;
• Not require a teacher to assign a minimum grade for an assignment without regard to the student’s quality of work; and
• A grading policy may allow a student an opportunity to make up or redo a class assignment or examination for which the student received a failing grade.

While this law requires that grades be determined by the student’s work, teachers should note that these provisions refer to grades on assignments—not final grades. Because the decision is made locally as to what constitutes sufficient mastery of the subject matter and district policy is given deference in final grades, grading decisions are practically made by the local school board and administration.

Many districts have struggled with the challenges inherent in grading students who may have very different access to resources at home. Because of this, many districts have chosen to adopt policies that students will either pass or receive an incomplete. Because there is so much deference given to local decision making in determining grading policies, flexibility may be required at this time.

TEA guidance on grading can be found at: https://tea.texas.gov/sites/default/files/covid19-guidance-on-grading.pdf

In most cases, a district can require a teacher or other employee to use Zoom or a similar platform.

Distance learning during the COVID-19 pandemic has required educators to adapt. One of the most common new tools is Zoom, a platform that allows virtual group interactions. Zoom and other similar platforms provide the means to have meetings, such as learning community, grade level, or subject area meetings, between educators. It can also be used to provide group instruction, creating a virtual classroom.

Although these platforms provide great opportunities, teachers and other employees are often anxious with the prospect of using them. The fears range from concerns that the interactions may be recorded and then used negatively in some way, concerns regarding confidentiality, or simply not being comfortable with the prospect of seeing oneself on camera. This latter concern is common enough that the term "Zoom anxiety" has now entered the English language.

While there were early, well-documented security issues with Zoom, those issues were quickly addressed, and the education community, including TEA, has expressed confidence that it can be safely used by teachers, as long as basic security measures are taken. (See Zoom Security Tips and Best Practices for Teachers for guidance on the safe use of Zoom.)

Teachers and other school employees should not use Zoom or any other platform without first receiving authorization from the appropriate administrator, usually their principal. But if that has been received, there is actually very little difference between using Zoom to interact with co-workers, students, or parents and having face-to-face interactions.

Teachers and support staff have done amazing things in finding, developing, and sharing instructional material with their students to continue the educational process. This is critical as districts’ ability to continue receiving state funding is dependent on their ability to plan for and provide educational opportunities to their students.

The challenges posed by distance teaching have required teachers to find new resources. The most important thing for teachers to keep in mind is that material should be consistent with district expectations.

There are few examples of the challenges of distance learning that compare to continuing the services provided for in a student’s IEP. Many districts have tried to address the issue by convening ARD meetings to modify IEPs to reflect what is now possible in this new learning environment.

The law provides no pandemic-related exception for a district’s requirement to provide a free and appropriate public education (“FAPE”) to its student population. But teachers with special education and 504 students need not panic. The law is clear that it is the district’s legal responsibility to provide services. Teachers must do the best that they can and should certainly ensure that the administration is aware of any problems that exist. Teachers also need to try and be flexible with the district’s efforts to fulfill their legal obligation—such as by being available for ARD meetings, even if held virtually.

TEA guidance for school districts regarding special education issues can be found at: tea.texas.gov/sites/default/files/COVID19%20Special%20Ed%20QA_Updated%20April%2023.pdf

It is likely individual districts will adopt local procedures prior to the return to the classroom. If a teacher or other staff member suspects a student is exhibiting symptoms consistent with exposure to the coronavirus, the individual should follow whatever protocol or procedure has been established locally. This will likely involve sending the student to the nurse’s office and isolating the student, but the decision is a local one.

Teachers and other staff members should always be careful in their communications so as not to unnecessarily embarrass, stigmatize, or frighten a student suspected of being ill or the other students. Teachers and other staff should also be careful to avoid racial or ethnic stereotyping, such as treating Asian students differently simply because the coronavirus first appeared in Asia.

Teachers, particularly teachers who employ objects that will be shared between students, such as goggles in a science lab or athletic equipment in P.E. class or athletics, need to consult with their administrators regarding making changes to their curriculum or activities. If a student expresses a concern regarding sharing equipment, etc., a teacher should look to the administration for guidance on how to proceed.

The term "closure" is complicated because the term has been used to describe campuses being closed during distance learning—when much of the staff is actually working. But it also can mean a period when there was no work being done.

If teachers or other staff are working, whether at home or at their regular worksite, they should be paid because they are working. If the question is compensation for a period when there was no work going on, which occurred at some districts the week after spring break, teachers and other contract staff should review their contracts. In most cases, a district will be required to provide the expected compensation to a teacher or other contract staff member if a school was closed but the teacher was “ready and willing to work” but for the closure.

Texas Education Code §21.401 provides that a contract between a certified educator and a district must be for at least 10 months and must provide for a minimum of 187 days’ service. Some districts have opted out of this provision under their local District of Innovation plans. Section 21.401(c) provides that if the commissioner does grant a waiver of the number of instructional minutes, the reduction cannot reduce an educator’s salary. This could, however, mean the educator would be required to work the “makeup time” should such makeup time be designated.

A district is not legally required to pay non-contract staff during closures where the individual was not actually working, though districts may legally pay the staff upon a determination that there is a legitimate interest in doing so, such as staff morale or retention.

If a school district has a reasonable belief, based on objective evidence, that an employee poses a direct threat to the health and safety of others, a district can likely make the employee stay home. Again, to be reasonable, the belief must be based on actual evidence, not mere concern, even if it is in good faith. Evidence that an individual traveled to an area of quarantine or had actual contact with an infected individual or individuals could be the basis for a reasonable belief of a direct threat. Conversely, simply having traveled or simply being on a cruise ship that had no verified contagion on board would likely not be a reasonable belief based on objective evidence. Again, the situation is evolving as health officials learn more about the transmission of the coronavirus.

It should be noted that a district can likely make any member of the staff stay at home regardless if they are a direct threat to health—as long as they are paid as if they are at work.

If a school district has a reasonable belief, based on objective evidence, that an employee poses a direct threat to the health and safety of others, a district can likely make the employee stay at home and use available sick leave or, if the employee has no sick leave, use unpaid leave. However, as noted above, if there is no evidence that the employee poses a direct threat to health, the district should likely pay the individual as if they were at work.

If a school district has a reasonable belief, based on objective evidence, that an employee poses a direct threat to the health and safety of others, a district can likely make the employee be tested. Again, to be reasonable, the belief must be based on actual evidence, not mere concern, even if it is in good faith. Evidence that an individual traveled to an area of quarantine or had actual contact with an infected individual or individuals could be the basis for a reasonable belief of a direct threat. Conversely, simply having traveled or simply being on a cruise ship that had no verified contagion on board would likely not be a reasonable belief based on objective evidence. Again, the situation is evolving as health officials learn more about the transmission of the coronavirus.

Current Texas state law provides that a worker may be eligible for unemployment benefits when pay is reduced because their work hours are reduced and the reduction is not due to disciplinary action. There is a long-standing exception for regularly scheduled business closures, however. A school employee who is not working because of the regularly scheduled summer break will normally not be eligible for unemployment benefits. You can find more information regarding Texas unemployment benefits at https://texasworkforce.wordpress.com/2020/03/19/unemployment-eligibility-faq/.