As educators, you demonstrate your strength and resolve every school year through your dedication to providing students with the best education possible under all circumstances. We understand you are on the front lines during this pandemic, and ASTA is here to support and assist you through this unprecedented time.

1. Are the CDC or ADE guidelines mandates? Do they legally have to be followed?

Most of the publications from the CDC and the ADE regarding COVID19 are guidelines and do not have the force of law. However, the law does provide that local school boards can institute varying requirements for employees and perhaps students. If an executive order is made regarding guidelines, they can become mandatory. In fact, many local municipalities have issued mandates for their area.

2. What has the ADE recommended for school employees during this pandemic?

School leaders should work closely with their staff and local boards to determine certified and classified staffing needs during the COVID-19 crisis and determine if local policies need to be modified. ADE has provided resources and guidance in the Arkansas Ready for Learning initiative to support school districts’ preparation for the 2020-21 school year which can be found at http://dese.ade.arkansas.gov/divisions/communications/arkansas-ready-for-learning. It is expected that all staff, including hourly staff, will earn pay and benefits as planned in the school budget. The intent is to prevent any unnecessary disruption. Hourly staff should follow the directives from their superintendent and partner with their schools to support students in order to be paid consistent with employee contracts. Districts and staff should be flexible in determining the manner in which hourly staff contribute to the continuity of operations. This may mean that staff perform different duties than they are normally assigned.

Districts should work with employees who need flexible work schedules and may consider adopting remote-work policies. In developing remote-work policies or protocols, district employees may be needed to complete work functions on a school campus. While districts must comply with directives by the governor and the Arkansas Department of Health regarding work requirements, district employees or contractors deemed necessary to conduct minimum basic school operations consistent with a district’s AMI plan are permitted to be physically present in district buildings, as determined by district administrators. This would include those employers or contractors deemed necessary to facilitate alternative modes of instruction, such as distributing materials and equipment, or performing other necessary in-person functions.

Districts must adopt social distancing practices and other mitigation measures to protect district employees and contractors. The following recommendations are advised based on ADH guidance:

1. Restricting the number of employees and contractors present in a district building to no more than is strictly necessary to perform the activities authorized by this section.

2. Promoting remote work to the fullest extent possible.

3. Practicing social distancing inside and outside buildings.

4. Recommending wearing cloth masks when inside buildings.

5. Cleaning and disinfecting frequently touched surfaces and following guidelines for slowing the spread of the virus.

6. Adopting policies for conducting health screenings before employees or contractors enter buildings.

Ready for Learning has more guidance on this and all returning to school matters.

3. Does the current pandemic automatically activate the ADA and/or FMLA?

The ADA is the Americans with Disabilities Act and prohibits discrimination on the basis of disability. An employee must be able to perform all essential functions of the job, with or without accommodation. One of the purposes of the ADA is to allow employees to keep working with reasonable accommodations to perform essential functions of the job. The ADA attempts to strike a balance between the employee needs and the school district needs. The ADA allows employees to request accommodations from their employer. The employee’s needs will be balanced against the district’s ability to provide and if that request creates an undue hardship on the district. The CDC has identified a list of conditions that can result in an increased risk for COVID-19 complications. These conditions do not guarantee an accommodation. Reasonable accommodations can include temporary job restructuring (teleworking), removal of nonessential job duties (duty, coaching, etc.), being allowed to wear additional PPE, modified shift schedule, changes to work environment (for example plexiglass barriers, disinfection of environment). To begin the process of seeking an accommodation, you must inform the district of the disability and request a specific accommodation under the ADA. The district is allowed to ask questions and request medical documentation. Ideally you will have given your doctor a copy of your job description and then you will make the request to the district with attached documentation from your treating physician regarding the condition, the recommendation for accommodation, and a statement that your doctor has reviewed a copy of your job description. The employee must continue to be able to perform the essential functions of the job. It’s important to note that ADA accommodations are available for conditions of the employee only. An employee is not entitled to ADA benefits for conditions of someone the employee is living with or caring for that is at higher risk of contracting or suffering from COVID-19. FMLA is the Family Medical Leave Act and is designed to allow employees to leave from work to take care of themselves or someone in their family while maintaining an employment relationship. FMLA entitles job protected leave (unpaid) for specific family medical reasons. Legal remedies for violation include filing an administrative charge with the EEOC (180 days for ADA), filing a lawsuit within 2 years for FMLA, or filing a grievance with your local school district within the local deadlines.

Normally, Arkansas law provides teachers with 10 days paid sick leave per year. In response to the COVID-19 crisis, the federal government passed and implemented important laws and policies related to leave from work for public employees, including public school teachers and administrators. These are the Families First Coronavirus Response Act (FFCRA), the Emergency Paid Sick Leave Act (EPSLA), and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The Emergency Paid Sick Leave Act applies to employees of private businesses with fewer than 500 workers or any public agency, which includes a “political subdivision of the state,” which includes school districts. This Act provides leave in addition to any type of leave that Arkansas educators are entitled to (sick leave, etc.) The EPSLA provides that: An employer covered by the law “… shall provide to each employee … paid sick time to the extent that the employee is unable to work (or telework)” because:

1. The employee is subject to a federal, state, or local quarantine order.

2. The employee has been advised to self-quarantine by a health care provider due to COVID-19.

3. The employee is experiencing COVID-19 symptoms and seeking medical diagnosis.

4. The employee is caring for an individual who is subject to (1) or (2).

5. The employee is caring for the son or daughter of such employee if the school or place of care of the son or daughter has been closed or the childcare provider “is unavailable due to COVID-19 precautions.”

6. The employee is experiencing another condition specified by the Secretary of Health and Human Services. The amount of sick leave available under the EPSLA for full time teachers is 80 hours/10 days. The amount of compensation is calculated based on the usual rate of pay and the number of hours the employee would otherwise be normally scheduled to work, except there is a maximum benefit of:

• $511/day and $5,110 in total for use under (1) – (3) above.

• $200/day and $2,000 aggregate for use under (4) – (6) above.

• For use under (4) – (6) above, the employee is compensated at two thirds their normal rate of pay. The EPSLA also provides:

• The employer may not require the employee to look for or find a replacement.

• Sick time under the EPSLA is available regardless of the amount of time the employee has been employed.

• The employer may not require an employee to use other paid leave provided by the employer before the employee uses leave under the EPSLA.

• It is unlawful for an employer to retaliate or discriminate against an employee for use of leave provided by the EPSLA.

It is important to note that this 80 hour or 10 day provision does not reset. Once it is depleted this type of leave is unavailable. If you are seeking to utilize this type of leave, make sure this request is made to your district in a form that includes documentation. If you have difficulty taking this leave make sure to contact ASTA’s Legal Team. The Emergency Family Medical Leave Expansion Act under the FFCRA would only apply if the employee was ineligible for extended sick leave as described above. It may allow an employee to take FMLA leave that is partially paid. If you find yourself in this scenario or have more questions, contact ASTA’s Legal Team. IT IS IMPORTANT TO NOTE THAT BOTH OF THESE TYPES OF LEAVE ARE ONLY MANDATED THROUGH DECEMBER 31, 2020.

An employer may require employees to wear protective gear (for example masks and gloves) and observe infection control practices (for example regular hand washing and social distancing protocols). However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII. Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19. Because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

As mentioned above, if you are in a high-risk group for COVID-19 as identified by the CDC you may be eligible for accommodations under the ADA. This means that you need to have a conversation with your employer to explain your limitations and determine whether there are any accommodations that will permit you to perform the essential functions of the job. There may be reasonable accommodations that could offer protection to an individual whose disability puts him or her at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Nevertheless, you must continue to be able to perform the essential functions of the job. It is important to note that an employee is not entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom he or she is associated.

During a pandemic, an employer can inquire if employees calling in sick are experiencing symptoms of the pandemic virus, and districts may require employees submit to temperature checks for fever before entering the building or during work hours. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat and others identified by the CDC. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

While the language in the Arkansas Department of Education’s guidelines and recommendations point to the wearing of masks being vital to schools remaining open, a firm requirement for them to be worn has not been made. Students who are sick should stay at home regardless of their illness, and those with COVID-19 ought to remain isolated at home until they have recovered and are determined to no longer be infectious. Students or coworkers that are with COVID-19 symptoms (such as fever, cough, or shortness of breath) at school should immediately be separated and sent home. Individuals who are sick should not return to school until released to do so by a physician. Student and employee medical records are legally protected and private, and any information contained in them should not be divulged to others.

9. When I’m ready to return to work, can I be required to provide a doctor’s note?

Yes, such inquiries are allowed under current EEOC and ADA Guidance.

10. If I refuse to return to the physical school setting this fall due to health concerns, and I resign or am terminated because of this, could I receive unemployment?

Approval of Arkansas unemployment insurance is decided on a case by case basis. If you resign from your position, unemployment insurance will not be approved. Attempt to work with your district to find a solution you are comfortable with, and document everything. If you or a family member have underlying health issues, it’s important to document those as well.

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