In the past weeks, some districts have implemented mask mandates despite the governor’s executive order prohibiting them, and other districts are considering following suit. Some local governmental entities and groups have taken legal action, arguing the governor does not have the legal authority to prohibit a mask requirement. Texas Attorney General Ken Paxton has also filed suit against several districts that have implemented mask mandates. Courts, including the Texas Supreme Court, have acted regarding individual cases and arguments. These judicial decisions have not ended the legal debate on the underlying legal question as to whether Abbott has the authority to prohibit local mask mandates.

It is too early to know how the courts will ultimately rule on whether Abbott acted within his authority or if he exceeded this authority by prohibiting local mask mandates. The Texas Education Agency’s current guidance, restating guidance provided prior to August 19, states that:

"Per GA-38, school systems cannot require students or staff to wear a mask. GA-38 addresses government-mandated face coverings in response to the COVID-19 pandemic. Other authority to require protective equipment, including masks, in an employment setting is not necessarily affected by GA-38."

Due to the ongoing litigation and our inability to know how the courts will ultimately rule, we must caution that if your district imposes a mandate, and you refuse to follow it, you could face negative employment action for insubordination. You may be able to claim a defense to any negative employment action based on the governor’s order. However, because we still don’t know how much legal weight the governor’s order has, as that question is still undecided, we don’t know how effective such a defense will be at this time.

Until we have a final decision from the courts and guidance from TEA, we are generally advising members that it is safest to abide by any local mask mandate. Any possible defense claiming adherence to the governor’s order could be rendered moot by the courts or the agency.

If a local mask mandate is established, individuals who can show they have a health-related or religious reason not to wear a mask may have a legal right to an exception.

Stay tuned for updates as this important issue evolves.

At present, TEA has determined that public schools can provide remote instruction if they wish to, but only those schools that are a part of the Texas Virtual School Network will receive state ADA funding for remote instruction. The fact that a district or charter will not receive state ADA funding for remote learning will likely be a strong factor weighing in favor of in-person instruction for the 2021-22 school year. TEA has published non-binding guidance regarding remote instruction at public schools outside the Texas Virtual Schools Network at tea.texas.gov/sites/default/files/covid/Non-TXVSN-Remote-Instruction.pdf.  

TEA guidance requires that a student or staff member who tests positive for COVID-19 or is actively sick with COVID-19 symptoms refrain from attending school in person. The guidance no longer includes a requirement for a quarantine after a close-contact exposure to COVID-19. It is possible a local school district or charter school could determine locally that it wishes to continue requiring a quarantine after a close-contact exposure. If this happens, however, because the quarantine is not legally required, the district or charter might have to continue to pay the educator and not deduct the time away from the educator’s available leave if the educator is employed under contract.

Students who are not able to attend school due to a quarantine for either an active or suspected COVID-19 illness are eligible to receive remote instruction. A school district may allow a staff member who is under quarantine to work remotely, but there is no specific requirement that this be an option, and whether it is an option depends greatly on the staff member’s duties and how easily they can perform those duties remotely.

There is no specific COVID-19 leave provided under either federal or state law. However, some districts across the state have adopted policies providing some type of additional local leave related to either a COVID-19-related quarantine or illness. Educators should check their local leave policies to see if their own district or charter provides any type of COVID-19-specific leave.

The answer, at least for the present, continues to be no for the great majority of teachers and other public school employees. The well-publicized plans described by President Joe Biden regarding a federal executive order requiring many to be vaccinated have led some teachers and other school district employees to question whether they can or will be required to get the COVID-19 vaccine to keep their jobs.

The presidential mandate was still in flux at the time this was posted; meetings between Biden and business and government representatives could affect who is covered by the mandate. At present, the mandate covers most federal employees, federal contractors, and employees at Medicare- and Medicaid-funded health care facilities. Biden has also ordered the Department of Labor to draft emergency rules that would require private employers with over 100 employees to ensure their employees either receive the vaccine or are regularly tested.

There has been much debate regarding whether the president has the legal authority to impose the mandate. A significant number of judicial opinions, most from the early 20th century, define when and how the federal government can require employers to take particular actions. These opinions have involved many issues we take for granted today, including child labor, work hour, and safety laws.

The federal government can enforce an employer mandate either directly or indirectly. The legal framework of when and how the federal government has direct authority is far too complicated to explain here. The most common circumstance is when the matter affects interstate commerce.

The indirect way federal government can practically require employers to take desired action through their ability to require the action as a condition of the receipt of federal funds. In other words, the employer is not directly required to follow the federal government’s wishes, but it will lose funding if it doesn’t. This can be a powerful incentive for an employer dependent on those funds.

There has also been debate as to whether the mandate would apply to Texas public schools. The plan has a particular provision that applies to federally funded Head Start programs. The majority of the mandate, as noted above, is applied through Occupational Safety and Health Administration (OSHA) rules. Although OSHA rules apply to public education in 26 states, Texas is not one of them. Therefore, it does not appear the mandate as it stands now will apply to the vast majority of teachers and other public school district employees in Texas.

On the state level, on August 25, Gov. Greg Abbott signed the latest COVID-19-related executive order, GA-39, which prohibits school districts or other governmental entities from requiring an employee to be vaccinated.

This latest order expands Abbott’s previous executive order, which applied to vaccines provided under an emergency authorization only. As many are aware, one of the COVID-19 vaccines has received full FDA approval. Abbott’s latest action removes the reference to vaccines provided under an emergency order and now simply states that the COVID-19 vaccine cannot be mandated by a school district. Abbott’s latest order also provides that the Texas Legislature may pass legislation regarding vaccinations, and if it does, that action will supersede his order.

While the foregoing describes the legal positions taken at the federal and state level specifically related to the COVID-19 pandemic, it is generally understood that an employer can require an employee to be vaccinated if the employer can show there is a “legitimate business necessity”—in other words, a very good reason—for the employer to require vaccinations. It is certainly possible a school district or charter school could determine vaccination is a business necessity because close contact is hard to avoid in public schools. It is unknown whether any districts will argue that Abbott has exceeded his authority regarding vaccinations as some have argued he has regarding mask mandates.

If a district were to decide this was the case, however, there would still be exceptions to the vaccination requirement. If an employee can show they either have a sincerely held religious objection to vaccination or have a legitimate health concern (such as an allergy), the employee could likely be exempted from the vaccination requirement.

There is some uncertainty as to whether Gov. Abbott’s latest executive order prohibits the question. Generally, an employer can ask about vaccination status so long as there is a legitimate business reason for doing so. Vaccination affects the likelihood of becoming ill and missing work, so this would be a legitimate business reason. But Executive Order GA-38 states:

State agencies and political subdivisions shall not adopt or enforce any order, ordinance, policy, regulation. rule, or similar measure that requires an individual to provide, as a condition of receiving any service or entering any place, documentation regarding the individual’s vaccination status for any COVID-19 vaccine administered under an emergency use authorization.

Again, it is unclear whether this applies to the employees of the “political subdivision” (a public school district is a “political subdivision”) or only “customers,” e.g., parents, students, and visitors.

In addition, there are two other caveats.

First, the district or anyone, like a nurse, acting on behalf of the district, would need to be very careful about asking any follow-up questions about why a person may not have gotten vaccinated. This could be considered an inquiry into a disability, which could violate the law.

Second, vaccination status is personal health information. Although an employer can often require an employee to share personal health information with the employer, the employer should be careful not to share the information with anyone who does not have a legitimate reason to receive it. This is not much different than your Social Security number. Your district can certainly require you to provide it, but the number must be kept confidential—for instance, your principal would not have a legitimate reason to know it.

If a staff member has a health condition that would make an illness such as COVID-19 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). However, as students return to in-person instruction in 2021-22, it will be more difficult to argue that a remote assignment is reasonable.

The ADA is a very "reality-based" law. What is actually going on is very important as it relates to the ADA. One way this is highlighted is in whether a particular accommodation is reasonable or an undue burden. The ADA requires only that an employer provide "reasonable accommodations," and an employer is not required to provide an accommodation if it would be an "undue burden." Changing circumstances (what is actually happening) can make a once-reasonable accommodation no longer reasonable. By the same token, changing circumstances can make an accommodation an undue burden when it was not before. If that happens, an employer can determine that a remote assignment is not a reasonable accommodation—even if they agreed that it was last school year.

As school districts return to in-person instruction, they need more staff on campus to meet the needs of additional on-campus students. This means there are fewer remote positions available. The ADA is clear there must be a position available for it to be a reasonable accommodation and that for an accommodation to be reasonable, an employee must be able to perform all of the job’s essential functions. While students were learning remotely, there was no need to provide many things, such as in-person monitoring, that would normally be an essential function to many positions. But as students return to campus, these essential functions also return, making it impossible for many employees to perform all the job’s essential functions while continuing to work remotely.

So, from both angles—whether a remote position continues to be “reasonable” and whether continuing it becomes an “undue burden”—districts are likely legally able to phase out remote assignments as they return to in-person instruction. It should be noted, as stated above, that the ADA looks at what is actually happening, so a district should be able to explain in black-and-white terms why a particular accommodation is no longer reasonable.