COVID-19 has affected educators in many ways, including how we teach and support students during this pandemic. On July 14, 2020, Governor Cooper announced that NC’s public schools will reopen under either Plan B or Plan C, as outlined in the NC. Dept. of Health and Human Services’ Strong Schools NC Public Health Toolkit. As part of the reopening process, districts are provided the option to choose which plan best suits its students, staff, and education community as the safest means to reopen and must adhere to the requirements outlined in the toolkit. As our State continues to deal with COVID-19 and we draw closer to reopening our schools, NCAE continues to advocate for members’ and students’ safety and concerns, in light of the reopening plans. Below are the answers to our members’ most frequently asked questions and concerns regarding educators’ rights and the reopening of schools.
1. Where can I find the plans for reopening schools?
You may find the Strong Schools NC Public Health Toolkit, with Plan B and Plan C, via this link: Strong Schools NC Public Health Toolkit. As you will find, Plan B requires safety measures such as: social distancing, face coverings, and fewer children in the classrooms, while Plan C is remote learning.
2. My district has decided to reopen schools under Plan B, and I am afraid to return to work. Can I be fired if I refuse to return to work?
It depends on your reason for refusal to return to work. If you have a valid health or family concern, it is unlikely that you will be dismissed. However, if your decision is based on general fear of contracting COVID-19, your employment may be at risk. Contact the Advocacy Center for advice and consultation.
3. Can the district ask questions about issues that may impact an educator’s ability to work this school year?
Yes. The district may ask non-disability related questions aimed at addressing potential staffing issues in light of the pandemic. These questions may inquire about whether the employee or someone in their household is at higher risk for contracting COVID-19 and lack of access to services needed for dependents in the household. The EEOC advises the employer to ask about these issues in one question and ask the employee to answer “yes” or “no” without asking the employee to identify which issues apply. However, if you answered “yes”, and request an accommodation, such as working remotely, the district may request additional information and require medical certification.
4. Can the district require an employee to leave the premises if they are displaying COVID 19 type symptoms?
Yes. The CDC states that employees who become ill at work with symptoms consistent with COVID-19 symptoms should leave the workplace.
5. Can the district ask about the type of symptoms an employee is experiencing?
Yes. The district may ask if an employee is experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. Any information that an employer collects about an employee’s symptoms should be maintained in a confidential medical file in compliance with the Americans with Disabilities Act (ADA).
6. Can the district require employees to submit to a temperature screening?
Yes. In times of a pandemic, the district may require employees to submit to a temperature screening. Temperature screenings results are medical information and subject to ADA confidentiality requirements.
7. Can the district ask about potential exposure to COVID-19 if that employee has traveled?
Yes. If the CDC or state or local health departments indicate that individuals who traveled to certain locations should remain at home for a certain period of time, an employer may ask if employees have traveled to such locations. It does not matter if the travel was for personal reasons.
8. Can the district impose conditions for an employee to return to work if they have traveled to a high-risk location as determined by the CDC, state or local health department?
Yes. The district may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
9. Can the district require employees to engage in certain routines or practices aimed at infection control such as handwashing, coughing and sneezing etiquette, tissue disposal, utensil disposal, etc.?
Yes. The district may require employees to engage in hygiene routines and practices for the purpose of infection control.
10. Can the district require employees to wear a face covering?
Yes. During a pandemic, and based on Governor Cooper’s statewide mandate and school reopening requirement, the district may require an employee to wear personal protective equipment aimed at limiting the spread of a virus such as a face covering. If an employee has a medical condition that prevents them from wearing a face covering, they should notify the district to engage in the process of determining if there is a reasonable accommodation to wearing a face covering.
11. Can the employer discipline an employee who refuses to wear a face covering?
Yes, absent a prior demonstration that an employee has a medical condition that prevents them from wearing a face covering safely and requires a reasonable accommodation, the district may take an employment action if the employee refuses to wear a covering.
12. Do employees with a medical condition that increases their chances for catching COVID 19 have the right to receive a job modification?
Possibly. Many individuals with medical conditions that never impacted their ability to work in schools now find that doing so poses a significant health risk. The Americans with Disabilities Act (ADA), requires employers to provide reasonable accommodations to qualified individuals with a disability unless doing so would provide an undue hardship. A reasonable accommodation is a modification to the job or work environment that enables an individual with a disability to perform the essential functions of the job. An employee with a medical condition which they believe requires a reasonable accommodation may contact their employer and make a request. The Advocacy Center is available to provide advice and assistance with making a request for a reasonable accommodation.
13. I am over 65 years old and considered to be at higher risk for contracting COVID-19. Can my age alone be enough to qualify me for an accommodation, such as working remotely, under the ADA?
Probably not. Age, as a sole factor, does not constitute a disability. The district is not required to provide an employee an accommodation because they are older but it may do so voluntarily.
14. I am pregnant, does pregnancy qualify as having a disability to obtain an accommodation to work from home?
Pregnancy is not a disability. However, having a pregnancy related medical condition might qualify an employee as having a disability under the ADA. The Pregnancy Discrimination Act requires that employees affected by childbirth, pregnancy or a related medical condition be treated the same as other employees with similar limitations. Contact the Advocacy Center for additional assistance.
15. May an employee qualify for a reasonable accommodation on the basis that someone in their household has a medical condition that deems them at high risk for contracting COVID-19?
Unfortunately, no. The ADA does not require an employer to grant an accommodation for the purpose of protecting someone in an employee’s household or family. The ADA does protect employees from being treated differently or harassed because of their association with someone who is disabled.
16. What are an employee’s potential leave options if they cannot demonstrate a legal basis for a job accommodation?
Under the Families First Coronavirus Response Act (FFCRA), through December 31, 2020, employees may be eligible for paid emergency sick leave. This leave is available for use in the event that an employee cannot work due to a number of COVID-19 related reasons including them or a family member is experiencing virus related symptoms or is under quarantine. The emergency paid leave is also available for use if the employee’s daycare or school is closed. It is available for immediate use regardless of how long an employee has been employed. Fulltime employees are eligible for up to 80 hours (or 10 eight hour days) of paid emergency leave. Regular part-time employees are entitled to paid emergency sick leave equivalent to the number of hours regularly worked in a two-week period. There is also a formula for determining paid emergency sick leave for part-time employees with a variable schedule. An employee is entitled to use paid emergency leave prior to using any accrued benefit leave that may be applicable. Under the Family Medical Leave Act (FMLA), employees who have worked at least 1,250 hours in the preceding 12 months are eligible for up to 12 weeks of job protected leave for their own serious medical condition that prevents them from performing the essential functions of their job or to care for an immediate family member who has a serious medical condition. You may find further information about leave under the FFCRA on the NCAE website at: https://www.ncae.org/whats-new/ncae-covid-19-resources-page/. You may also contact the Advocacy Center with specific questions, concerns, or if you have been denied leave by the district.
17. My district has sent out waivers for us to waive liability against the district for catching COVID-19, is this legally enforceable?
Likely not. Employees cannot waive the right to pursue a workers’ compensation action against their employer. Employees cannot waive rights vested by workplace protection laws. Workers’ compensation is the only likely means an employee could request a legal remedy if they believe they contracted COVID-19 at work.
18. What should I do if the district presents me with a waiver asking to waive any claims against the district if I contract COVID-19?
Do NOT sign the document contact the Advocacy Center for advice.
19. Are we required to keep six feet of distance between everyone at all times? No, but it is recommend to observe the appropriate social distancing whenever possible.
20. What can I do if a student is refusing to wear a face covering or engage in appropriate social distancing?
The district should be updating their policies to address the expectations for students to engage in appropriate practices needed to reduce the spread of COVID-19.
21.Our school is planning to use video conferencing or other virtual learning software apps to hold classes virtually on remote learning days. Can the district use such apps under FERPA?
Yes, under the school official exception to FERPA’s general consent requirement, educational agencies and institutions may disclose students’ education records, or personally identifying information in those records, to a provider of such a service or application as long as the provider meets certain conditions. This is why it is important that staff only utilize services or applications which are approved through the employer.
The information provided is the most up-to-date information available at this time. The Advocacy Center will update this document as more information is available.
Updated August 3, 2020
