March 18, 2020 Update Regarding School Closures for In-School Student Instruction and Proposed Legislation
KEEPING YOU INFORMED…
We are writing to update you regarding this week’s mandated school closures, proposed State legislation to require paid sick leave and job protections for certain employees subject to a mandatory or precautionary order of quarantine or isolation related to the Novel Coronavirus (COVID-19) outbreak and the State Education Department’s guidance issued last evening.
As you know, Governor Andrew M. Cuomo’s Executive Order 202.4 directs all New York State schools to close by today and to remain closed until April 1, 2020, at which time the State will reassess whether to extend the mandatory closure beyond April 1.
It is our belief that the State’s intention is not for school buildings to “close,” but for the schools to merely suspend in-school student instruction and extracurricular activities and to allow staff to work in school buildings and/or remotely. This is similar to last week’s Nassau and Suffolk County Executive Orders, which specifically allowed school buildings to remain open for administrators and staff to address school needs (which includes compliance with the new State-mandates during this closure).
State Legislation to Provide Paid Sick Leave
Last evening, the Governor announced an agreement with the State Legislature on a bill that includes pay and guaranteed job protection for certain New Yorkers as a result of COVID-19.
Once the bill is adopted and in effect, all public employers (including school districts and BOCES) would be required to provide any officer or employee who is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 issued by the State of New York, the Department of Health, a local board of health or any governmental entity authorized to issue an order of quarantine or isolation, with the following:
• at least 14 days of paid sick leave (at the officer’s or employee’s regular rate of pay for those regular work hours during which the officer or employee is absent from work due to the above-described mandatory or precautionary order of quarantine or isolation); and
• guaranteed job protection for the duration of the quarantine order.
Employers would be required to provide the paid sick leave without loss of accrued sick leave. Upon return to work following this leave of absence, the employer must restore the employee to the position that the employee held prior to the leave with the same pay and other terms and conditions of employment. Employers may not discharge, threaten, penalize or in any other manner discriminate or retaliate against an employee who has taken a leave of absence authorized by this proposed legislation.
Mandatory paid sick leave and related job protection do not apply to an employee who is subject to a mandatory or precautionary order of quarantine or isolation because he or she has returned to the United States after traveling to a country for which the employee was aware (before leaving the United States) that the CDC had issued a level two or three travel health notice (provided that the travel was not taken as part of the employee’s employment or at the direction of his or her employer). In this situation, the employee will be eligible to use accrued leave provided by the employer or, to the extent that the employee does not have sufficient accrued leave, unpaid sick leave must be provided for the duration of the mandatory or precautionary quarantine or isolation.
An employee who is deemed asymptomatic or who has not yet been diagnosed with any medical condition and who is physically able to work while subject to a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means, would also be excluded from the mandatory paid sick leave and job protection.
We will let you know if, and when, this bill becomes effective. We will also update you regarding any federal legislation that may affect schools and BOCES with respect to employee benefits as a result of the COVID-19 outbreak.
Executive Order 202.4 provides that the two-week mandatory school closure will satisfy the requirements for a waiver of the 180-day instructional requirement with respect to State funding. If the Governor extends the mandatory closure beyond April 1, he will assess whether to continue the waiver during the extended closure period.
Essential and Non-Essential Personnel
Executive Order 202.4 also directs “local governments” and “political subdivisions” to allow non-essential personnel to work from home or take a leave of absence without charge to accruals, except for personnel who are essential to the entity’s COVID-19 response. The number of these non-essential personnel members must equal at least 50% of the total number of employees across the entity’s entire workplace. It is up to the local government or political subdivision to determine which staff members are “essential” to its COVID-19 response.
It is our opinion that school districts and BOCES are considered “political subdivisions” in the context of the Executive Order. We will let you know if we receive information that changes our opinion. If you have any questions regarding whether certain staff members are “essential” or whether an employee should be excused from work, please contact us. This is an unusual situation, but steps should be taken to avoid creating bad precedent.
Finally, Executive Order 202.4 directs school districts “to develop a plan for alternative instructional options, distribution and availability of meals, and child care, with an emphasis on serving children of parents in the health care profession or first responders who are critical to the response effort.” In guidance issued last evening, SED clarified that Nassau, Suffolk and Westchester Counties are not required to submit a plan because the counties have already done so.
SED Guidance Regarding the State-Wide School Closures
The SED guidance issued last evening also provides information to assist schools in developing continuity of learning during the closure, including a range of tools and modalities to facilitate learning, with varying levels of technological sophistication. SED recommends that schools offer a variety of methods to allow for the possibility of restricted access to technology and limited communication with students. The guidance also urges schools to consider offering online social emotional learning and/or mental health education lessons or to incorporate opportunities to practice social emotional learning within academic subject areas to address student and staff social emotional and mental needs during the school closure.
SED also reminds schools that parents/guardians need to be contacted regarding any medications or health equipment that remain in the school buildings so that arrangements may be made for the parent/guardian to pick them up if they are needed during the closure.
The SED guidance issued last evening also includes important updates regarding providing meals to students during the school closures. The guidance is available at: http://www.p12.nysed.gov/sss/schoolhealth/schoolhealthservices/coronavirus.html.
Negotiating Agreements With Your Unions
We have been advised that many unions are proposing memoranda of agreement regarding employee working hours, vacation time, pay and related issues. If you receive a proposed memorandum or if you would like to prepare one to address a particular issue with your staff, please let us know so that we can assist in accordance with your current contract language, past practice and best practices.
Please contact Lauren Schnitzer or one of our other attorneys by calling (631) 694-2300 if you have any questions regarding the contents of this memorandum or other issues that may arise during the State-mandated school closure.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020