*******You will be able to find all of the guidance from KSB School Law, and it will be updated, at this site: https://www.ksbschoollaw.com/covid19*******
As part of KSB’s ongoing coronavirus updates, we wanted to centralize the most common legal questions and issues we have seen related to employment issues that are present now, even if there is never a school closure. We have another update highlighting potential legal issues in the event of a school closure, many of which will overlap with the discussion below. You can find that update and the other KSB coronavirus updates by clicking here.
We have already received many great questions related to staffing and employment issues schools are dealing with now.
Should you waive your sick leave limitations and limits? Should you not charge staff for sick leave taken due to quarantine? One uniform suggestion from public health officials is that people who may be sick should stay home. However, some staff members have very limited paid sick leave, and others may not want to use sick leave for what seems like a cold. We have had many schools ask us if they should waive or suspend their sick leave policies in favor of “If you’re sick, stay home!”
School boards could allow staff to take leave as needed to avoid spread of coronavirus for a limited period of time -- a few weeks, a month or the the remainder of the year -- regardless of whether the staff member could otherwise power through or take sick leave. Of course, some schools are also worried about staff abusing this type of leave. This option may not work for you, but it is an option to avoid having ill staff members attend school based on existing limitations to sick leave use or not having sufficient days to cover an illness or quarantine period.
For classified staff or other staff not subject to collective bargaining, the board has legal authority to enact a policy or resolution temporarily “suspending” enforcement of sick leave provisions with a simple directive: if you feel ill, stay home!
For certificated staff subject to the collective bargaining agreement, the board of education cannot just unilaterally add a benefit like unlimited sick leave without first conferring with the union. The board for a school or ESU could approach their local teacher’s association and sign an addendum which would modify your 2019-2020 negotiated agreement. The addendum could clarify that, for purposes of avoiding the spread of the coronavirus, staff members will be granted additional leave to stay home. This could supplement existing sick leave or functionally serve as another type of leave that could be used instead of sick leave. We are in communications with the NSEA about what such an addendum would look like, though we want to emphasize KSB is not “recommending” this. It is simply an option for you to consider.
How should you treat employee requests for leave or ask to take leave based on doctor’s orders, in light of your existing sick leave, FMLA, and ADA obligation? Generally, a staff member who contracts coronavirus would be entitled to take sick leave. Their leave likely would not qualify for additional leave under the FMLA, ADA, or other disability laws.
However, the duration of any leave period, hospitalization, or complications due to the virus could be a different story. Although these employees would almost certainly qualify for sick leave, they may also qualify for other forms of leave. These employees may be entitled to take for leave under the FMLA, ADA, and even your short- or long-term disability leave policies. You should carefully scrutinize any request for leave from staff members due to the virus, whether they have coronavirus or are asking or told to quarantine.
What if the school or ESU wants to exclude a staff member or contracted service provider? Instead of staff members making requests, you may find yourself in the position of wanting to send a staff member home or suggest a leave of absence as the employer. For example, with schools on spring break throughout March, you may have staff members, service providers, and independent contractors who have traveled to affected areas or have contact with potentially affected individuals.
If you have suspended your leave policies as discussed above, you can likely send an employee home because the leave is paid. If you send an employee home, you will need to consider whether you can require the employee to use sick leave, whether you owe statutory compensation to a teacher, and whether things like the FMLA may also apply. You should look at your employment contracts and your board policies on sick and administrative leave.
For non-employee service providers and other contractors (food service, transportation, etc.), you will need to check your contracts. You should reach out to those companies and providers now and clarify expectations in the event one of your contractors must remove its employees from your school, or if you as the school feel compelled to say they cannot serve students due to possible coronavirus infections.
Should you expedite completion of staff evaluations? The short answer here is YES! By policy and state law, schools and ESUs have evaluation obligations. Remember that state statute requires administrators to evaluate probationary certificated staff members (teachers and principals), once each semester. You never know when any individual staff member may need to take leave or may be ordered to take leave by a doctor. If you do not get the second semester evaluation completed, you will not be able to recommend the nonrenewal of a probationary teacher’s or principal’s contract.
You should definitely speed up your evaluation timelines and get them done as soon as possible, so any potential school closure or individual quarantine or illness does not cause you to miss your evaluation obligations.
Should you provide statutory notices earlier just in case school closures happen statewide or in your community? There is no pandemic outbreak exception for meeting statutory deadlines to provide staff with notice of possible amendment, nonrenewal, termination, or cancellation of contract. If you are considering issuing a notice, you should do so now or at least consider how you would deliver notice in the event of future closures.
If you normally provide “intent to return” letters or use renewal agreements for staff, you may want to consider issuing those earlier than normal. However, keep in mind you cannot require them to be returned prior to March 15.
Are staff members who contract the virus due to school duties entitled to workers’ compensation leave? Generally speaking, employees that contract the coronavirus are not eligible for worker's compensation claims. Under section 48-101, worker's compensation is available "when personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment."
Occupational disease is defined by section 48-151 to mean "only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed."
It seems that the coronavirus is an "ordinary disease of life to which the general public is exposed." However, if an employee's course of work brought them into contact with the novel coronavirus based on exposure due specifically to serving students, and the general public in that community has not been exposed, the employee may at least make that argument.
Notably, in Murphy v. City of Grand Island, 274 Neb. 670, 742 N.W.2d 506 (2007), a healthcare worker brought a claim alleging that Hepatitis C constituted an “occupational disease”. The Nebraska Supreme Court found that the employee offered insufficient proof that the disease arose out of and in the course of his employment. However, the Court did not rule out the possibility that it could constitute an occupational disease. If an employee suggests they received coronavirus due to performance of school duties, you should at least contact your insurance carrier.