COVID-19 FAQs and Resources for Texas Educators

The developing response to the spread of COVID-19 (commonly called the coronavirus) puts school districts and individual educators in somewhat uncharted territory. Although the situation has similarities to the 2009 H1N1 virus, or swine flu, outbreak, Texas education law has evolved in the past 11 years and so has technology, enabling remote work and learning. In many ways, the public health response to the new coronavirus is already broader in scope on a global scale.

ATPE has developed this list of answers to frequently asked questions from Texas educators regarding COVID-19. We will update this information as it changes.

Readers should be aware that, as described below, most decisions are made locally. In addition, as we have all witnessed, the environment is changing rapidly. The information provided here is the best available at the time and will be updated as circumstances warrant.
 

District Requirements and Obligations

Texas Education Code §37.108 requires that all school districts develop an Emergency Operation Plan (EOP). The law provides that the plan “must address prevention, mitigation, preparedness, response, and recovery as defined by the Texas School Safety Center in conjunction with the governor’s office of homeland security and the commissioner of education or commissioner of higher education, as applicable.”

The Texas School Safety Center has developed recommendations to school districts to help guide them in their preparations.

If the district’s EOP addresses how to deal with an issue such as coronavirus, the district is not required to create a separate plan. The EOP requires that a district have procedures for coordinating with appropriate other governmental entities such as local health departments.

What a district is required to do depends to a great extent on whether the actions are preventative—prior to a confirmed exposure, or remedial—after a confirmed coronavirus exposure. What will be 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 should recognize that many factors need to be considered, such as possible sensitivities or allergies that 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 as reporting is necessary, such as to a local health department.

A district may cancel or prohibit school-related travel, such as field trips, athletic events, and professional development. A district is more limited in prohibiting personal travel. But teachers and other staff should be aware that restrictions are evolving as circumstances change. Mandatory quarantines for visitors to some countries are already in place, and these may be expanded. Travelers need to be aware that travel restrictions may change, and the treatment of individuals who have traveled to certain regions or who may have had contact with a known outbreak or an individual who has tested positive may affect that individual’s ability to return to work.

A district can make reasonable inquiries regarding travel if there is a reasonable basis for determining that 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.

Historically, the decision as to when to close schools and for how long is determined locally by either the school board or the district’s superintendent as guided by the district’s Emergency Operation Plan. However, on March 19, Gov. Greg Abbott issued an executive order closing schools until midnight April 3, adding that the order could be extended. In his press conference announcing the executive order, he stated learning should continue. Districts across the state are currently devising individual plans to continue providing instruction, as well as continue providing food service.



Working with Students

If a teacher or other staff member suspects that 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 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, may want 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 their administration for guidance on how to proceed.



Your Health and Employment

President Trump signed the Families First Coronavirus Response Act (FFCRA) March 18, and the law goes into effect in no more than 15 days (or no later than April 1). The law covers a lot of ground. 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 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.

These laws are new and untested, and guiding regulations have yet to be written. They also do not apply to all school district employees. To learn more, read ATPE’s preliminary analysis of these two new laws.

The Texas Education Code §25.081(a) requires that school districts provide at least 75,600 minutes of instruction per school year. Many districts have opted out of this requirement, however, under their local District of Innovation plan. In addition, the commissioner of education can grant waivers of the time requirement on the request of a district, though the district is expected to make up the first two missed days. This is usually done through the ubiquitous “bad weather days” built into local district calendars.

While many districts are therefore not legally required to make up time, a district may still choose to do so. If a district chooses to extend the school year, lengthen school days, or add days to the calendar, teachers and others may ask if they can be required to work that amended work schedule. The answer is complex, and many different factors can affect the answer in individual circumstances. First, teachers and other staff employed under contracts should check their contract to see what it says about changes to the work schedule. Non-contract staff are likely subject to changes in the schedule, though there is no exception to the usual overtime compensation requirements.

Teachers and other contract staff should review their contract. 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 plan. Section 21.401(c) provides that if the commissioner does grant a waiver of the number of minutes of instruction, the reduction cannot reduce an educator’s salary. This could, however, mean that the educator would be required to work the “makeup time” should such make up time be designated.

A district is not legally required to pay non-contract staff during closures, 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. Many districts did during the H1N1 flu outbreak in 2009.

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.

Generally, a district is not required to allow a staff member to be absent simply due to that staff member’s concern regarding an illness. However, if a staff member has a condition that would make an illness such as the coronavirus particularly dangerous, such as a person with a compromised respiratory system, the district would be obligated to consider an absence as a reasonable accommodation of a disability under the Americans with Disabilities Act.

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.

As reported by the media, and shared in the first question in this section, the federal government has expanded coronavirus-related leave options and is currently considering options regarding packages that might include financial assistance for workers. It remains to be seen what form such assistance might take. 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. You can find more information regarding Texas unemployment benefits at https://texasworkforce.wordpress.com/2020/03/19/unemployment-eligibility-faq/.



ATPE Meetings and Events

Each spring, ATPE local units and regions hold meetings to elect officers and conduct business. Given the executive order announced today by Gov. Greg Abbott, which prohibits gatherings of 10 or more until April 3, local units and regions should postpone any meetings scheduled between now and April 3. Given the possibility this executive order will be extended, ATPE also encourages local units and regions to consider postponing spring meetings scheduled after April 3. The health and safety of our members is of the utmost concern.
 
We have also consulted with ATPE’s parliamentarian regarding options for conducting local unit elections remotely:

  • If your local unit or region bylaws include provisions for online elections or mail-in voting, your local unit/region can conduct online officer elections.  If your local unit/region would like to conduct an online election, please contact your regional membership specialist.
  • If your local unit or region bylaws do not include provisions for online elections or mail-in voting, your local unit/region cannot conduct online elections and will need to postpone elections until such time as a meeting can be held in person. Current officers will remain in their positions through the end of the membership year and until such time as an in-person election can be held.
If you have any questions, please contact your regional membership specialist or ATPE Membership at members@atpe.org. ATPE remains open to support and assist members. Our thoughts are with each of you during this challenging time.
 

 

As you all know, this situation is fluid. For now we have delayed the opening of summit registration and housing until May 1. We are staying on top of all government orders and how they will affect ATPE operations. Our utmost priority is the safety and health of our members and our attendees at any ATPE function. We will continue to update you as the picture becomes clearer, and we encourage you to check atpesummit.org for event information and answers to frequently asked questions.

 

 
The legal information provided on this website is for general purposes only and is accurate as of the date of publication, March 11, 2020. 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.

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