*******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 communities around the country record new cases of novel coronavirus, schools are grappling with tough questions about how to respond to this burgeoning pandemic. The novel coronavirus, scientifically named 2019-nCoV, causes the COVID-19 disease, which has led to serious complications in some vulnerable populations, and is expected to spread more quickly than common coronavirus strains (such as influenza.)
If school districts are required to close schools in response to a novel coronavirus outbreak, there are multiple employment issues that will be implicated.
Certificated Staff Issues
Nebraska has a state law that specifically addresses the rights of teachers to be paid if schools close due to the outbreak of an infectious disease. Section 79-8,106 of the Nebraska Revised Statutes provides:
In case of epidemic sickness prevailing to such an extent that the school or schools in any school district shall be closed, teachers shall be paid their usual salaries in full for such time as the school or schools shall be closed.
We believe that this statute would apply if a school district closes due to an outbreak of COVID-19. Regardless of whether the school closure is ordered by the governor or the board of education decides to close after conferring with their local health department, teachers will be entitled to their full salary and benefits while the district is closed.
The real question under section 79-8,106 is what is the definition of a “teacher.” Chapter 79 of the Nebraska statutes never defines that term. In section 79-101, the Unicameral defines the term “teach:”
(12) Teach means and includes, but is not limited to, the following responsibilities: (a) The organization and management of the classroom or the physical area in which the learning experiences of pupils take place; (b) the assessment and diagnosis of the individual educational needs of the pupils; (c) the planning, selecting, organizing, prescribing, and directing of the learning experiences of pupils; (d) the planning of teaching strategies and the selection of available materials and equipment to be used; and (e) the evaluation and reporting of student progress ….
Later, in section 79-824, the Nebraska statutes provide a definition of “certificated employee”:
(1) Certificated employee means and includes all teachers and administrators as defined in section 79-101, other than substitute teachers, who are employed one-half time or more by any class of school district;
We read sections 79-101 and 79-824 together to mean that any staff member who is employed half-time or more and who is entitled to plan instruction and assess student achievement qualifies as a “teacher.” If your school is forced to close, your board of education will be required to pay all half-time or greater classroom teachers, guidance counselors, school psychologists, speech pathologists, occupational therapists, administrators, school nurses and media specialists. Your board of education will not automatically be required to pay staff who work less than half time, regardless of whether they “teach.”
Classified Staff Issues
Unlike teachers, classified staff have no statutory right to be paid if your school is forced to close. Your district should begin considering now how it will want to treat classified staff in the event of a closure due to COVID-19. No matter what a district does, the board is likely to be subject to criticism from the community. A board that decides to be frugal and not pay its staff can be criticized for not taking care of some of its most valuable employees. A board that opts to pay classified staff could be targeted for being profligate with taxpayer dollars. That is why boards should start thinking about how they want to handle classified staff pay now in advance of the need to actually close school.
We have identified a range of options that boards can consider in deciding how to handle classified staff pay during a school closure:
Option No. 1: Pay classified staff nothing if they do not work.
Classified staff who are unable to work due to a school closure are not entitled to payment for their work under state or federal law. Even if a classified staff member is ill and had sick leave available, the school will not have to pay that staff member if the school closes.
Option No. 2: Allow classified staff to substitute accrued sick and vacation leave or compensatory time during a school closure.
Some school districts allow classified staff to accrue both sick and personal leave. Districts that are forced to close due to a COVID-19 outbreak may decide to allow classified staff to use their accrued paid leave during a closure. Boards of education that decide to use this option should check with their school attorneys for the wording of a resolution that would allow staff to substitute paid leave during this school closure but not during other school closures (like the holiday or summer break).
Option No. 3: Require/allow classified staff to work limited hours during a school closure.
Some school districts may want to require or allow critical staff to work limited hours during a school closure. School secretaries and custodians would be able to perform useful work, even if students are not in school buildings. Boards of education that decide to use this option should check with their school attorneys for the wording of a resolution that would require critical staff to come to work and that is clear about how other classified staff such as bus drivers and paras will be treated during a school closure.
Option No. 4: Pay all classified staff members some amount of paid leave in exchange for a “return to work agreement.”
Many of the administrators we have conferred with want to provide some compensation to classified staff in order to ensure that they will not quit and find other work during a school closure. But these same administrators are understandably reluctant to provide classified staff with unlimited paid leave regardless of the length of the closure. In this circumstance, the district could enter into a written agreement with each classified staff member to provide some level of paid leave in exchange for that employee’s promise to return to work when the school reopens or to return the payment made during the school closure. This approach would allow the school district to retain its classified staff while avoiding legal and political issues related to giving away public resources. Boards of education that decide to use this option should check with their school attorneys for the agreements that could be used for this purpose.
Option No. 5: Place all classified staff members on “paid leave” prior to closing the school district’s attendance centers.
If a board of education wants to treat classified staff exactly the same way that it treats its teachers, the board could pass a resolution placing all classified staff on paid administrative leave prior to closing the district’s attendance centers. This is the most legally risky option. Political subdivisions are not permitted to simply give away public resources. The Nebraska Supreme Court has held that the state constitution prohibits one group of taxpayers from being taxed for the benefit of another group. See e.g., Mann v. Wayne County Board of Equalization, 186 Neb.753, 186 N.W.2d 729 (1971). Section 49-14,101 of the Political Accountability and Disclosure Act states in pertinent part:
(4) No public official or public employee shall use personnel, resources, property, or funds under that individual’s care and control, other than in accordance with prescribed constitutional, statutory, and regulatory procedures, or use such items, other than compensation provided by law, for personal financial gain.
The violation of § 49-14,101 is a Class III misdemeanor which carries a maximum penalty of a $500 fine, or three months imprisonment, or both.
We do not believe that Nebraska school officials will be criminally prosecuted if they pay their classified staff during a school closure. We do think that a school district that wants to pay its classified staff should confer with its attorney and carefully craft any resolution that the board adopts to achieve this payment.
Health Insurance and Other Benefits
As you can imagine, the way that school districts elect to compensate classified employees (or not) during a potential school closure may also affect health insurance and other benefits, including how such benefits are paid for.
For example, practically speaking, many districts pay for the entire cost of health insurance and then deduct the classified employee’s portion of health insurance premiums from the classified employee’s paycheck. Other school districts make health insurance coverage available to classified employees, but the employee actually pays for the health insurance through some combination of employer contributions and employee dollars. Still other districts may have other arrangements.
The extent to which a classified employee receives regular, reduced, or no compensation during a potential school closure will affect both the amount of funds available for insurance premiums as well as how such payments are actually made. It will be important for districts considering school closures to think about the practical consequences for insurance and benefits--in addition to the leave and compensation issues--when considering the appropriate way for those districts to interact with classified staff on these issues.