There may be a lot of uncertainty about the coming school year, but one thing you can count on is that PEN of Florida is here for you, regardless of the circumstance. Rest assured that you will be protected and your rights will be supported going into this school year. The following are answers to frequently asked questions and guidance for teachers in the upcoming 2020-2021 school year.
If there is ever a time that a teacher needs legal support, this is it. Educators cannot afford to leave anything up to chance, especially in times like these. The school year has not even started and PEN of Florida’s legal team has already been handling members’ cases related to the COVID-19 pandemic.
Please note that this publication is aimed at informing educators and does not necessarily reflect the views of PEN of Florida or its staff members.
Frequently Asked Questions: Legal Rights
If I get COVID while at school will I be forced to use my sick days?
It’s possible you might have to use your sick days if you’re out because you have COVID-19. The Families First Coronavirus Response Act (FRCRA) gives employees up to 80 hours of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined pursuant to federal, state, or local government ordinance or advice of a healthcare provider, and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. The 80 hours provided by federal law is in addition to your accumulated leave with the district and must be exhausted before turning to your accrued leave. Therefore, while your district can require you to use any accrued leave while you’re out, they cannot do so until you have exhausted this federal benefit. At that point, district sick leave policy will control when and how your days will be used.
If I get COVID while working at the school, will I qualify for FMLA?
Possibly, depending on the severity of the symptoms you have. As always, an employee qualifies for FMLA if they have a serious health condition as defined in the Act. Unless you have complications from having COVID-19 that require continuing medical treatment and/or in-patient care, you will likely not qualify for FMLA.
If I have a pre-existing condition or am otherwise in a “high risk” category. I am not comfortable going back to school. What should I do?
The first step is to contact your healthcare provider and discuss these concerns with them. Your medical provider will determine whether or not your condition requires quarantine, or if it’s safe for you to return to the workplace. With a written recommendation from your healthcare provider, you may qualify for paid sick leave under the Families First Coronavirus Response Act. The quarantine recommendation will get you up to 80 hours of paid sick leave.
Once you have used your eligible hours, the new law does not provide protection. It is possible you might qualify for leave under the traditional Family and Medical Leave Act or for a reasonable accommodation under the Americans with Disabilities Act. If you are in this situation, please call the PEN of Florida Legal Services department at firstname.lastname@example.org or 800-311-7770 for more guidance.
If I’m pregnant, do I have any additional rights that would allow me to stay home?
At this point there are no recommendations regarding increased protections for pregnant women beyond saying “prevention should be emphasized.” Further, current law does not provide any additional protections for pregnant women beyond what is available to all workers. If you believe you are at greater risk or have a complication that puts you at greater risk, you should contact your doctor to discuss your concerns and the potential for a doctor-recommended quarantine.
Can I force the students in my classroom to wear a face mask?
Absent a mandate from federal, state or local government or the school district, an individual district employee is not able to unilaterally require masks be worn in his/her classroom. If the district requires masks to be worn and a student is not wearing one, the teacher should follow district guidance/protocol.
Can my school take my temperature and ask medical questions when I report to work?
Yes, schools are allowed to conduct basic screenings of their employees. Pursuant to the EEOC’s guidance, employers may screen their employees regarding COVID-19, so long as employers treat all employees uniformly and protect the confidentiality of the screening results. Questions must be related to COVID-19. Screening can include asking employees if they are experiencing symptoms, taking their temperatures, and even requiring they be tested.
Am I required to tell my school when and where I travel?
Yes, if the district has a policy requiring it. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have COVID-19 symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal. Such travel inquiries would fall under an employer’s screening of employees generally, as mentioned above.
Can my school force me to stay home without pay if I travel out of my local area?
Traveling during the pandemic increases your likelihood of getting and spreading COVID-19. Therefore, it is reasonable for your school district to be concerned about traveling during the school year. The district has a responsibility to provide a safe learning and working environment and, therefore, could require those who have traveled out of the area, especially to areas that are experiencing increased cases of COVID-19 infections, to self-quarantine when they return home. Depending on district policies and whether or not you have any accrued leave days, it’s possible you may not get paid during this period of self-quarantine.
Is the school required to accommodate me if I live with a high-risk individual?
No, while employers are usually required to accommodate employees on a variety of levels, this does not extend to other individuals the employee knows or lives with. People who live with high-risk individuals should take extra precautions and consider staying at home altogether if they don’t feel the work environment is safe.
Can my school force me to social distance and wear a mask outside of the workplace?
No, your employer cannot force you to social distance, wear a mask, or otherwise control what COVID precautions you do and do not take outside the workplace. However, if you do contract COVID or interact with somebody who is known to have COVID, your school will likely request you stay at home for a certain amount of time and/or take other measures before coming back to work.
Can I take off work to watch my own children if I don’t feel comfortable sending them back to school?
No, assuming your child’s school or daycare is open, you cannot take off work to watch them because you are not comfortable sending them to school/daycare. As schools come out with their back-to-school COVID plans, each parent (including teachers and other school employees with children) will need to assess how they feel about sending their own children back.
If a COVID-19 outbreak forces my school to close, can the district force me to use my sick leave during the closure? Can the district furlough me during the closure?
No, if the school is closed and employees are not able to report, they should not be forced to use sick time. Assuming the employee is “ready and willing to work” but for the closure, we believe the district is required to pay contracted employees per their contract. Non-contracted employees will most likely not be paid during a school closure per federal Department of Labor guidelines.
What is my liability if a student in my classroom gets COVID because the students are either not social distancing, or unable to social distance via the type of lesson or instruction they’re receiving?
Analyzing a teacher’s liability for a COVID spread in their classroom is similar to any other event taking place in the classroom. As the teacher and adult in the room, it is important you are monitoring the students at all times and enforcing school rules and codes of conduct. Teachers will be responsible for enforcing any COVID guidelines schools create for this upcoming school year.
That being said, kids will be kids and unexpected events will occur in the classroom that we are unable to stop. While we cannot reduce a teacher’s liability to zero, actively monitoring the students and enforcing the rules given to you by the school are good ways to keep your liability to a minimum.
If I contract COVID at school and miss time from work, will I qualify for workers’ compensation?
Most likely, no.
Generally, a regular disease that the general public is exposed to is not covered under the occupational disease category. So while occupational diseases are typically covered by workers’ compensation, diseases such as influenza, common colds, and MRSA are not covered. This holds true even if the worker is a healthcare worker. These diseases can be contracted in infinite places, not necessarily at the worker’s place of employment. Workers’ compensation cases involving COVID-19 will likely only be compensable if the worker is in the healthcare field and has been specifically exposed to the virus.
What happens to the duty-free lunch if districts require teachers to watch students in their classrooms during the lunch period to implement a COVID-19 safety protocol?
At this time Florida statutory mandates have not been modified due to the implementation of safety protocols. A district cannot refuse to follow Florida Law to impose additional duties that conflict with Florida Law.
If I’m out for COVID-related reasons how will that impact my retirement?
These absences are covered under the FRCRA provisions. Asence should have no greater effect than an individual utilizing FLMA. In both cases, there should be no recrimination against the individual’s employment or retirement.
For more information, the Florida Department of Education released an overview of the state’s reopening plan that you can read here: http://www.fldoe.org/core/fileparse.php/19861/urlt/FLDOEReopeningCARESAct.pdf. We wish all Florida educators a safe and successful coming school year.