Dear Legal Mailbag:

I breathed a huge sigh of relief after finishing my portion of the School Reopening Plan, which our district submitted to the State last week. But before I could relax for a moment, I heard a ding, and a lengthy email from a teacher in my building popped into my inbox. She wrote to tell me that she thinks it will be dangerous for her to go back to the classroom this fall, and she has asked me if she can just stay home and take sick leave. While I want to be supportive, I am just not sure what to do. If everyone did that, we would have a mess on our hands, and we simply wouldn’t be able to run the schools. What should I say when I write back?

Worried Sick About Sick Leave
Dear Worried:

First, Legal Mailbag congratulates you and your district on completing your School Reopening Plan. You all must have invested a tremendous amount of thought, hard work, and creativity in developing the three operational models for the 2020-21 school year.

When you respond to the teacher, you should first acknowledge her concern and share many of the protocols the district has developed to ensure as safe a workplace and place of learning as practicable, given these unprecedented times. Be sure to explain measures regarding health monitoring, social distancing, enhanced cleaning, and mask requirements. You can also reassure her that the district will continue to work in close consultation with the local public health department and make adjustments in light of the evolving situation. Also remind her about the training that the district is planning not only for teachers and staff, but also for students and families, so that everyone is on the same page about how to keep school buildings as safe as possible.

As to the teacher’s request for sick leave, on these facts you can just say no. A generalized fear of returning to the workplace would not typically justify the use of sick leave. However, there may be more to the teacher’s request. A determination of an employee’s entitlement to leave will require consideration of his or her individual circumstances, as well as any federal laws, state law, collective bargaining agreement provisions, and district policies applicable to the situation. That is a job for the HR Department, not a building principal or an employee’s direct supervisor. Legal Mailbag therefore recommends that you kindly refer the employee to the HR Department so that she can discuss her sick leave request directly with the people there if she so chooses.

Of course, if the teacher does become sick for any reason during the school year, she will be entitled to use her accrued sick leave, subject to the same terms and documentation as normally required. In addition, if the teacher finds herself in one of the very unfortunate situations contemplated by the Families First Coronavirus Response Act (FFCRA) or traditional Family and Medical Leave Act (FMLA), she may be entitled to other leave under federal law.

Under the emergency paid sick leave provisions of the FFCRA (affectionately known as EPSLA), from April 1, 2020 through December 31, 2020, an employee may be entitled to up to eighty hours of paid sick leave (or a part-time employee’s two-week equivalent) if the employee: (1) is subject to a federal, state or local quarantine or isolation order; (2) has been advised by a healthcare provider to self-quarantine; or (3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis. An employee may also be entitled to EPSLA if he or she: (4) is caring for a quarantined individual, (5) is caring for his or her child whose school or place of care has been closed (or child care provider is unavailable) for reasons related to COVID-19, or (6) is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services. As you can see, the FFCRA is complicated, and the people in HR are better able to discuss the facts and any leave opportunities she may have. In any event, if she is entitled to EPSLA leave, the daily and total amount of compensation available under this federal law is capped, depending on the reason for leave, but such leave may be supplemented by leave otherwise available for such purposes.

Under the FMLA, job-protected unpaid leave is available for certain employees who have worked for the district for at least twelve months and who cannot work because of their own serious health condition or because they need to care for a spouse, parent, or child with a serious health condition. Employees may also be able to use accrued paid leave while taking FMLA leave, subject to any applicable collective bargaining provision and/or district policy. Employees may be asked to provide a certification and/or periodic recertification supporting their need for leave. Such may be the case if an employee (or a qualifying family member) becomes afflicted with COVID-19. However, the U.S Department of Labor has clarified: “Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA.”

Finally, if the teacher’s request for leave stems from an underlying medical condition that qualifies as a disability and she shares (or has shared) this information with the district, she may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA). Employees who indicate that they have a medically-based need for an accommodation can and should be required to provide medical verification concerning the employee’s disability, along with documentation regarding the specific restrictions that apply to the employee. With that information, the district and the individual engage in an interactive dialogue over whether and how the employee’s disability may be accommodated while assuring that the employee is able to perform the essential functions of the employee’s position. Such accommodations may include providing special supports and/or protections in the workplace, or providing leave as may be available. In any event, the district will not be required to provide a particular accommodation if it imposes an undue hardship on the district. As you noted in your question, the district has schools to operate, and it can’t do that unless it has qualified teachers working with kids.

In closing, you will want to stick with being a school principal and let HR handle the situation if the teacher finds herself in one of the circumstances covered by the FFCRA, develops or has to care for someone with a serious health condition that may be covered by the FMLA, or would like to request an accommodation for a disability pursuant to the ADA. But she should know that, while HR will work diligently and respectfully with her to determine whether she is entitled to leave, HR will also be adhering to the law. As for sick leave, sick leave is almost always reserved for situations when employees are sick.

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Dori Pagé Antonetti.

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Photo of Dori Pagé Antonetti Dori Pagé Antonetti

Dori Pagé Antonetti is a member of the School Law Practice Group where she represents a wide range of educational institutions, including both public and independent k-12 schools in a variety of education and employment law matters.  In her day-to-day representation of clients…

Dori Pagé Antonetti is a member of the School Law Practice Group where she represents a wide range of educational institutions, including both public and independent k-12 schools in a variety of education and employment law matters.  In her day-to-day representation of clients, Dori draws on her unique experience as a former educator for Teach for America.  This experience, coupled with her time as a hearing review officer for the New York City Office of Labor Relations, allows Dori to analyze issues from a practical perspective, which brings significant advantages to her clients.

Most recently, Dori’s practice has focused on assisting school districts and independent schools with various aspects of COVID-19 pandemic response and preparedness and return-to-school planning.  Dori has provided guidance on the requirements and implementation of ever-evolving federal and state laws and guidelines in various areas, such as employee leave, vaccine mandates, mask rules, health and safety protocols, telehealth, and sports-related issues.

Dori is a thoughtful attorney who has astute peripheral vision which allows her to help school clients identify legal issues and develop creative solutions.  She is attentive to detail, careful, and thorough.  Dori has extensive experience in policy development and review, and enjoys helping clients ensure that their policies and regulations are legally compliant, clearly written, and accomplish their intended purpose.  She also regularly advises schools on their obligations and responsibilities under the Family and Medical Leave Act and Americans with Disabilities Act.  For independent school clients, Dori has extensive experience drafting and revising enrollment contracts, faculty/staff handbooks, employment contracts and advising on issues such as truth-in-lending obligations, federal funding, vaccine policies and exemption issues.