COVID-19 FAQs and Resources for Texas Educators

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. There are two caveats, however.

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.

As a note, in early March, TEA required school districts to provide estimates of how many district staff members would like to receive the vaccine. Part of TEA’s vaccine distribution planning, this request has resulted in many teachers and staff members receiving emails asking if they plan to be vaccinated. For more information about districts as vaccine providers, please see the TEA FAQ at tea.texas.gov/sites/default/files/covid/k-12_covid-19_vaccine_faq.pdf.

Gov. Greg Abbott signed Executive Order 36 May 18, limiting the authority of governmental bodies to require masks. Specific to public schools, the new order states that current TEA guidance, which allows individual school boards to decide locally when and where masks will be required, will remain in place until June 4, 2021. The order directs TEA to update its guidance no later than 11:59 p.m. June 4 to prohibit a school district from requiring a student, teacher, parent, or other staff member or visitor to wear a mask.

Until June 4, districts can choose whether to require masks under the governor’s previous order. Abbott’s previous executive order signed March 2 significantly reduced the requirement that Texans wear a mask when in public. However, the order did not go so far as saying that no one could be required to wear a mask. Referring specifically to public education, Abbott’s order states:

Public schools may operate as provided by, and under the minimum standard health protocols found in, guidance issued by the Texas Education Agency.

The current guidance can be found at Public Health Guidance for School Year 2020-2021 (tea.texas.gov). The guidance provides:

Health and Hygiene Practices: Masks
 

1. For the purposes of this document, masks include non-medical and medical grade disposable face masks and cloth face coverings (over the nose and mouth). Full-face shields may be used in place of a mask to protect eyes, nose, and mouth whenever a mask is not feasible or whenever the education context may benefit from the ability to see an individual’s full face.


2. Schools must comply with the following requirements:
   
   Every student, teacher, or staff member shall wear a mask over the nose and mouth when inside a school building, school facility, facility used for school activities, or when in an outdoor space on school property or used for school activities, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household; provided, however, that this mask requirement does not apply to the following:
    
   • Any person younger than 10 years of age, except where a school system determines it is developmentally appropriate;
   • Any person with a medical condition or disability that prevents wearing a mask;
   • Any person while the person is consuming food or drink, or is seated in a dining area to eat or drink;
   • Any person while the person is: (a) exercising outdoors or engaging in physical activity outdoors; and (b) maintaining a safe distance from other people not in the same household; or
   • Any person while the person is giving a speech for a broadcast or to an audience.
   
   The above mask-wearing requirements do not apply to any school system that was exempted from the face covering requirements of Executive Order GA-29 during its effect due to a county judge attestation filed with the Texas Division of Emergency Management.
   
   The governing board of a school system may modify or eliminate by formal action the above mask-related requirements. (Emphasis added.)


3. In addition to the mask-wearing requirements listed above, school systems may require the use of masks or face shields for adults or students for whom it is developmentally appropriate.


4. It may be impractical for students to wear masks or face shields while participating in some non-UIL athletic or other extracurricular activities. In situations where masks are required by this guidance and when it is impractical for students to wear masks or face shields during those activities, schools must require students, teachers, staff, and visitors to wear masks or face shields when entering and exiting facilities and practice areas and when not actively engaging in those activities. Schools may, for example, allow students who are actively exercising to remove masks or face shields, as long as they maintain at least six feet of distance from other students, teachers, and staff who are not wearing masks or face shields. However, schools must require students, teachers, and staff to wear masks or face shields as they arrange themselves in positions that will allow them to maintain safe distancing.

TEA will update its guidance in the future under Abbott’s new order, but for now, individual districts can make local decisions as to whether they will continue to require some or all students and staff to “mask up” while at school or school-related events.

On March 2, the director of the Centers for Disease Control and Prevention (CDC) issued a directive that all states must immediately include all educational personnel in their vaccine eligibility groups. The written directive concludes:

“All COVID-19 vaccination providers are directed and required to make available and administer, as one of the currently eligible groups, COVID-19 vaccine to those who work in pre-primary, primary and secondary schools, as well as Head Start and Early Head Start programs (including teachers, staff and bus drivers) and those who work as or for licensed child care providers, including center-based and family care providers.”

The CDC has authority over vaccines purchased and provided by the federal government, which, at this point, includes all COVID-19 vaccines.

Please note that this directive does not require that individuals agree to vaccination. It only requires that vaccine providers immediately include educators in the group currently eligible for the vaccine.

For the time being, the answer is no. As TEA stated in recent guidance, the initial distribution of the vaccine is authorized under an Emergency Use Authorization (EUA) and so cannot be required. However, this could change in the future. At that point, there will not be a simple answer as to whether teachers or other employees can be required by their school district or any other entity to be vaccinated. As of now, there is no federal or state-level requirement for vaccination, so any possible requirement would come from the individual employer—the school district. 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 that a school district or charter school could determine vaccination is a business necessity because close contact is hard to avoid in public schools. However, if a district were to decide this was the case, 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 can likely be exempted from the vaccination requirement.

Again, at this point, there is no federal or state requirement to be vaccinated. If one were created, the religious and health exceptions would still apply. There has also been no federal or state action prohibiting an employer from requiring vaccination other than the current EUA. That could, however, change. For instance, it is possible that Gov. Greg Abbott could create such a prohibition by executive order.

Section 28.021 of the Texas Education Code states “[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 “a school district shall adopt a grading policy” and the policy must:

• Require a classroom teacher to assign a grade that reflects the student’s relative mastery of an assignment; and
• Not require a teacher to assign a minimum grade for an assignment without regard to the student’s quality of work.

In addition, 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.

Although this law requires grades be determined by the student’s work, teachers should note 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. Now that both in-person and remote options are available in most school districts, those challenges have likely increased. 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 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.

There has been some concern that Zoom lessons can be viewed by a parent and particularly recorded Zoom lessons that might be copied and posted by a parent could be considered a violation of student confidentiality under the Family Educational Rights and Privacy Act (FERPA). It is unlikely that is the case, just as an administrator visiting the classroom to do a “walkthrough” teacher appraisal is not a FERPA violation. But, as long as teachers are following district directives regarding using platforms such as Zoom, they need not fear. FERPA places the responsibility for maintaining confidentiality on the district, and so as long as a teacher can show that they were acting as directed, the fault would lie with the district.

There are few examples of the challenges of remote 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/texas-schools/health-safety-discipline/covid/covid-19-support-special-education-0

Teachers have a specific provision in their contracts that allows the administration to assign "additional duties," so the general answer is a principal can direct a teacher to assist with an unusual assignment when needed. A staff member such as a paraprofessional or office worker who does not have a contract can generally be directed to perform any assignment that is not itself illegal.

There are, however, exceptions to this general rule. Teachers should still receive their duty-free lunch and their own planning/conference time as required by law. If a teacher or other staff member has been granted accommodations, such as remote working, and the assignment would violate those accommodations, they may be able to refuse the assignment, though as the circumstances at the district and campus change, accommodations can also change, as described below.

The answer is a big maybe; it depends on what the change is. Many districts have revised their job descriptions since the spring 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.

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.

Staff should also recognize job descriptions are important documents, but they are not the “last word” regarding job duties. It is often possible for a supervisor to ask that some task be done, even if it is not specifically listed on a job description. Often, job descriptions will have a catch-all “or other duties as assigned” provision that allows for this. Also, the fact a particular task is listed on a job description does not mean that task is automatically considered an “essential function” of the job. As such, an employee with a disability may be able to request an accommodation regarding a duty, even if that duty is listed on a job description.

TEA guidance states:

Any individuals who themselves either:

1. are test-confirmed to have COVID-19; or
2. experience the symptoms of COVID-19

Must stay at home throughout the infection period and cannot return to campus until the school system screens the individual to determine any of the below conditions for campus re-entry have been met:

1. at least one day (24 hours) has passed since recovery (resolution of fever without the use of fever-reducing medications);
2. the individual has improvement in symptoms (e.g., cough, shortness of breath); and
3. at least 10 days have passed since symptoms first appeared.

The guidance states that a teacher or staff member showing COVID-19 symptoms must be quarantined until it can be established that they do not have COVID-19, either through a negative COVID-19 test or an alternate diagnosis from a doctor. Until that time, the district must treat the teacher or staff member showing symptoms as if they have COVID-19, and they must quarantine until all three conditions above are met.

The guidance lists symptoms of COVID-19 as:

• Feeling feverish or a measured temperature greater than or equal to 100.0 degrees Fahrenheit
• Loss of taste or smell
• Cough
• Difficulty breathing
• Shortness of breath
• Fatigue
• Headache
• Chills
• Sore throat
• Congestion or runny nose
• Shaking or exaggerated shivering
• Significant muscle pain or ache
• Diarrhea
• Nausea or vomiting

It should be noted that a district can likely make any member of the staff stay at home regardless of whether they are required to by the TEA guidance—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 the employee poses a direct threat to health, the district should likely pay the individual as if they were at work.

A district can require an employee who is forced to quarantine due to the mandatory TEA guidelines to use available leave to be paid, though a district may allow the individual to work remotely if that is an option. See atpe.org/en/News/ATPE-Blog/2020/August/If-You-Don-t-Feel-Safe-Returning-to-Campus for a discussion of leave options.

In a situation where a quarantine is not legally required but the district chooses to order the individual to quarantine, the question is likely whether the individual has an employment contract with the district. If there is no contract, the district can likely choose to pay the individual or not, at the district’s discretion. If the individual does have a contract, the district may have a contractual obligation to pay the individual.

Unfortunately, the fact that safety protocols are in place does not automatically ensure they will be followed on a day-to-day basis as necessary to actually create a safer environment. Lack of compliance can be caused by personal preference or by a reluctance to make an offender uncomfortable.

It is possible to deal with these situations either informally or formally. Which works best depends much on the individual circumstances. If campus staff are not following the safety rules, bringing the concerns to the campus administration may be enough. If the administration is lax in enforcement, it may still be possible to correct the situation by going to the administration informally. If campus staff do not follow the safety rules, bringing the concerns to the campus administration through informal meetings or email communication may suffice. Sometimes the administration may not be aware of noncompliance, or it may be lax with enforcement if it feels campus staff do not want enforcement. Creating a record of a concern could prompt the administration to action.

When the campus administration is not willing to enforce the safety guidelines, it is still possible to address the issues informally by going to the central administration or even the school board. Educators considering this should be aware, though, that it is unlikely complaints will remain confidential.

If it is not possible to resolve the issues informally, then there is the possibility of addressing the concerns more formally through a grievance. For more about what a grievance is and how it works, please visit www.atpe.org/en/Protection/Legal-Guide/Grievances-Dealing-with-Problems.

On March 12, TEA updated its guidance to school districts to reflect changes in the Centers for Disease for Control and Prevention (CDC) guidance regarding quarantines after close contact. The new TEA guidance increases the flexibility school districts have in determining when to order a staff member to quarantine by adding vaccination status and prior infection status as considerations. The guidance continues to state that districts are not required to place an asymptomatic staff member under quarantine after close contact with a confirmed COVID-19 case if the staff member is necessary to school operations.

The TEA guidance states:

Stay-at-Home Period for Close Contacts of Individuals Who Tested Positive

For individuals who are close contacts to individuals who tested positive, a 14-day stay-at-home period was originally advised by the CDC based on the incubation period of the virus.

On December 2, 2020, the CDC amended their [sic] guidance to allow two shorter options for the stay at-home period. Based on current CDC guidance, the stay-at-home period can end for individuals experiencing no symptoms:

• On Day 10 after close contact exposure without testing,
• On Day 7 after close contact exposure and after receiving a negative test result.

If individuals return to school from these shorter stay-at-home windows, they should regularly monitor themselves for symptoms to ensure they remain symptom-free and take appropriate precautions (e.g., more consistent mask usage) for the duration of the 14-day incubation period.

Finally, the CDC advised that critical infrastructure services—which includes schools—may permit close contact staff members who are asymptomatic to continue to work in select instances when it is necessary to preserve school operations. Per the CDC, this option should be used only in limited circumstances. When using this option, school systems may consider adding additional protocols to increase monitoring for these individuals, which might include the use of COVID-19 tests (e.g., on Day 3 and/or Day 7 after the close contact exposure).

Taking into account all of the above, school systems may apply any of the following stay-at-home periods to those individuals who are identified as close contacts. Specifically, the stay-at-home period can be:

• 10 days after the last close contact, so long as they continue to monitor themselves daily for symptoms and take appropriate precautions through day 14
• 7 days after the last close contact, after receiving a negative test result (administered at least 5 days after the last close contact), so long as they continue to monitor themselves daily for symptoms and take appropriate precautions through day 14
• For staff who are necessary to preserve school operations, school systems can choose not to require any stay-at-home period, so long as the affected staff continue to monitor themselves daily for symptoms and take appropriate precautions through day 14, and schools can consider the use of rapid tests for these individuals
• 14 days after the last close contact

The new CDC guidance, incorporated into TEA’s guidance March 12, states that there is no requirement to quarantine after a close contact with a test-confirmed individual if the teacher or other staff member:

• Is fully vaccinated—defined as having received the full dose of the vaccine (two shots if two are required; one shot if only one is required), with at least two weeks since the last required dose—and shows no COVID-19 symptoms; or
• Had a confirmed COVID-19 infection within the past three months, has recovered, and shows no COVID-19 symptoms.

What is “close contact”?

The TEA guidance close contact rules only apply to contact with a person who has a confirmed COVID-19 infection. The guidance defines close contact as the following:

In general, close contact is defined as:

1. being directly exposed to infectious secretions (e.g., being coughed on); or
2. being within six feet for a total of approximately 15 minutes throughout the course of a day; however, additional factors like case/contact masking (i.e., both the infectious individual and the potential close contact have been consistently and properly masked), ventilation, presence of dividers, and case symptomology may affect this determination.

Either (a) or (b) defines close contact if it occurred during the infectious period of the case, defined as two days prior to symptom onset to 10 days after symptom onset.

In the case of asymptomatic individuals who are test-confirmed with COVID-19, the infectious period is defined as two days prior to the confirming test and continuing for 10 days following the confirming test.

The new guidance states that an individual’s vaccination status or prior infection status may also be considered when determining whether a “close contact” incident with a test-confirmed infected individual occurred.

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).

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 change its decision about granting a particular accommodation—like remote teaching.

As school districts phase in-person instruction back in, they find themselves needing more staff on campus to meet the needs of additional on-campus students. This means there are fewer remote teaching 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, the teacher 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 a teaching position. But as students return to campus, these essential functions also return, making it impossible for a teacher to perform all the job’s essential functions while continuing to work remotely.

Because, in most cases, districts are required by TEA to accept students who want in-person instruction and TEA recently made clear that districts are not actually required to offer remote instruction at all, the argument that it is an undue burden to have teachers working remotely also becomes stronger. So, from both angles—whether a remote teaching position continues to be “reasonable” and whether continuing it becomes an “undue burden”—districts may phase out remote teaching as they phase out remote learning. 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 based on what is actually happening.

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.

Teachers and other staff members should also be careful about posts made on social media, crowdsourced reporting sites operated by private entities or unions; Facebook groups that appear grassroots but may be operated by private entities or unions; and online discussion forums, such as Reddit. Your post may not be truly anonymous if you share enough information about yourself that you could be identified, even if you do not share your name.

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.

Typically, when a staff member requests an accommodation, they are required to provide supporting medical documentation of their health condition, the reason it creates a risk, and the needed accommodation. 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 ADA does not require that an employer agree to a requested 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 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.

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 operations plan and any guidance from other entities, such as TEA and 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. TEA has also issued guidance on what a district should do. The guidance, which can be found at tea.texas.gov/sites/default/files/covid/SY-20-21-Public-Health-Guidance.pdf, requires that districts:

• Close off areas that have been heavily used by the individual with the test-confirmed case (student, teacher, or staff) until the nonporous surfaces in those areas can be disinfected (unless more than seven days have already passed since that person was on campus).

The guidance recommends that districts should (but are not required to):

• Clean the areas used by the individual who showed COVID-19 symptoms while at school (student, teacher, or staff) as soon as is feasible.
• Attempt to have hand sanitizer and/or hand-washing stations with soap and water at each entrance. They should also attempt to provide hand sanitizer and/or hand-washing stations with soap and water in every classroom.
• Institute more frequent cleaning practices, including additional cleaning by janitorial staff, as well as provide the opportunity for children to clean their own spaces before and after they are used in ways that are safe and developmentally appropriate.
• Arrange for additional cleaning and disinfecting of surfaces touched in common areas throughout the day. This would include door handles, common tables/desks, shared supplies such as art supplies, and high-touch devices such as shared laptops or tablets.
• Arrange for cleaning of commonly touched surfaces in classrooms between different class groups if the same room will be used by multiple class groups.
• Ensure cleaning products are stored safely, including storing harmful products where children cannot access them, and ensuring harmful cleaning products are not used near children.
• Consider requiring students and staff to use hand sanitizer upon boarding the bus.
• Thoroughly clean buses after each bus trip, focusing on high-touch surfaces such as bus seats, steering wheels, knobs, and door handles.

Individual districts’ local safety plans may incorporate the recommendations made by TEA and make them mandatory for that district. Because many decisions are made locally, all staff should be aware of their own district’s safety protocols and expectations.

TEA guidance requires that:

Consistent with school notification requirements for other communicable diseases, and consistent with legal confidentiality requirements, schools must notify all teachers, staff, and families of all students in a school if a test-confirmed COVID-19 case is identified among students, teachers or staff who participate on any on campus activities.

The guidance does not specify what information can or should be included in the notice to both meet this requirement and comply with confidentiality requirements. Because a number of laws, including the Educator’s Code of Ethics, require that personally identifiable health information remain confidential, it is most likely that most districts will provide notice a case has been confirmed at a school but not name the individual.

TEA guidelines require schools to immediately separate any student who shows COVID-19 symptoms while at school until the student can be picked up by a parent or guardian. Because of this requirement, individual districts will adopt local procedures for a teacher or other staff member to follow if they suspect a student is exhibiting symptoms consistent with COVID-19. This will likely involve sending the student to the nurse’s office and isolating the student, but the specific procedure is decided locally.

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. They should also be careful in questioning a student about their symptoms not to go too far, particularly in front of other students, to avoid both embarrassment and a claim that confidential health information was shared with the class.

Teachers and staff should also be careful in asking students about symptoms if the student is not actually exhibiting symptoms. The TEA guidelines state that districts “may consider screening students for COVID-19 as well. Screening is accomplished by asking questions by phone or other electronic methods and/or in person. The screening questions should also be asked of a student’s parent if that parent will be dropping off or picking up their child from inside the school.” Because these guidelines allow but do not require screening, it is up to the individual district to determine what screening will be done and who will do it. Teachers and staff should know and follow their local rules.

The general rule regarding COVID-19 viral testing is that an employer can require employees to be tested in most cases before coming to the worksite.

The EEOC clarified last spring that if an employer could establish a business purpose for testing, that employer could require an employee to submit to a viral COVID-19 test. Because inhibiting the spread of the coronavirus is a legitimate business purpose, this meant an employer could require viral testing for anyone actually coming into the workplace. The EEOC did distinguish antibody testing (which determines if a person has been exposed in the past) and has stated that an employer cannot require antibody testing. There has been no change to the guidance since it was first published, and there is unlikely to be any because it essentially confirmed a long-standing principle.

However, to complicate matters a little, TEA has distributed a large number of tests to school districts across the state. TEA has clearly stated that tests a district has obtained from the TEA program cannot be mandatory. See Q & A No. 7:

7. Can we require a student or staff member to take the BinaxNOW test?

• Schools cannot mandate the use of the Abbott BinaxNOW Ag Card Tests on their staff or students.

So, the answer really depends on where the tests come from. If they come from TEA, the answer is no. If they come from some other source, the answer is generally yes.

There are also specific situations, such as when a person is experiencing symptoms, that getting a test may affect the length of time a person has to be out on leave. Because a teacher or other staff member exhibiting symptoms is required to quarantine until they test negative or receive an alternative diagnosis from a doctor under the TEA guidelines, these individuals likely have a practical need to be tested.

Most leave options are not changing, and if you had leave available to use before the winter break, it will also be there after the winter break. But there has been one big change: The Families First Coronavirus Response Act (FFCRA), signed into law in spring 2020 in response to the pandemic, expired December 31. As you may have read, Congress passed and President Trump eventually signed new legislation extending many COVID-related benefits, such as business loans and extended unemployment. However, the new law did not directly extend the two types of COVID-19-specific leave created by the FFCRA: Emergency Paid Sick Leave (EPSL) and Extended Family Medical Leave (EFML). The law did extend eligibility for tax credits IF an employer continues to provide EPSL or EFML, but the new law does not require that an employer provide the leave—that is now up to the employer.

For an explanation of EPSL and EFML, please visit www.atpe.org/en/Resources/Coronavirus/Families-First-Coronavirus-Response-Act-(FFCRA).

The answer depends on whether the request was for discretionary leave or nondiscretionary leave. Personal leave may be used for illness or some other circumstance outside of the teacher's control (termed "nondiscretionary leave") or for a purpose within the teacher's control (termed "discretionary leave"). A district may impose restrictions on the use of discretionary leave but may not refuse a request based on the reason leave is requested. For example, district policies commonly prohibit taking discretionary personal leave during the first week of school, immediately before or after a holiday, when a certain number of staff will be out, or when the leave will be disruptive. Leave could be considered "disruptive" when a district is having difficulties finding substitutes—a common problem during the pandemic.

The availability of substitutes should not affect the availability or use of nondiscretionary leave—leave taken for illness or some other reason outside of the teacher's or other staff member's control.

The return to working in person, whether in the classroom or a district office, has increased concerns about what leave options exist if a person feels unable to return to the worksite because of a health risk or because they become ill or are required to quarantine.

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. State leave would normally be available to a staff member who was ill or needed to quarantine. It would also likely be available for an individual who can provide medical documentation regarding a serious health risk in returning. 

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.

Family and Medical Leave

A qualifying employee is eligible for up to 12 weeks of unpaid family and medical leave (FML) if unable to work due to their own serious health condition or that of a close family member. Unlike the Extended Family and Medical Leave provided for under the FFCRA, regular FML is unpaid. The qualifications for FML and an explanation of the benefits can be found at atpe.org/en/Protection/Legal-Guide/Absences-Leave.

Some school districts have refused to grant FML to individuals who were previously able to work with their underlying health condition and are now unable to only because of the increased health risks caused by the possibility of an infection. There has, as of yet, been no guidance from the courts or Department of Labor clarifying whether this is consistent with the requirements of the law.

Temporary Disability Leave
A certified educator is eligible for up to 180 days of unpaid leave when a disability interferes with their ability to work. The qualifications for temporary disability leave and an explanation of the benefits can be found at atpe.org/en/Protection/Legal-Guide/Absences-Leave.

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.

Absolutely, yes. The first question is whether you have an employment contract. If you do not, you are considered “at will” and can leave your job at any time for any reason.

It becomes more complicated if you do have a contract. If you are employed with a contract, you must be “released” by the district, or you must have “good cause” to “abandon” your contract. If you leave without being released and without having good cause, your district’s board of trustees can vote to file a complaint with the State Board for Educator Certification (SBEC), asking SBEC to sanction your teaching license because you abandoned your contract.

SBEC recognizes there are circumstances that would constitute “good cause” for a teacher or other certified educator to resign 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 an 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.

A “significant change in the educator’s family needs that require the educator to relocate or devote more time than allowed by current employment” is also considered a good cause for contract abandonment. An educator who needs to stay home because their child is learning remotely might be considered to have good cause to abandon their contract, as long as there is some type of “change” as required by the rule. You can find more information regarding resignations, “good cause,” “abandonment,” and possible sanctions, at atpe.org/en/Protection/Legal-Guide/Resignations.

Some districts that have told their staffs they will agree to release a contract staff member asking to leave because of the pandemic. Educators should recognize that these informal statements are not binding and that the superintendent or board can change their position and decide they will not agree to release educators, even if they previously said they would. Once an educator has been notified that they have been released, the district cannot then change its mind.

It is often better to explore leave options prior to submitting a request for a release. You can find out more regarding those options elsewhere in this FAQ and at www.atpe.org/en/Protection/Legal-Guide/Absences-Leave.

Finally, educators should know how leaving before the end of the year might affect their retirement benefits as TRS rules govern when an educator has worked long enough to earn a year of retirement credit. For more on retirement, visit www.trs.texas.gov.

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 should be aware of and follow any restrictions that are put in place. Immunity protection depends on the exercise of judgment or discretion, so a teacher or other staff member may lose their immunity if they violate a required rule as they generally have no judgement or discretion about following required rules.