Here are some of the most frequently asked questions members are calling our Legal Department about regarding returning to school amid the COVID-19 pandemic.

WATCH NOW: Returning to Work Amid COVID-19 Part 1
TCTA Staff Attorney Julie Leahy answers questions about returning to work amid the pandemic including, Must I report to work in August if I do not agree with my school district’s plan for addressing the pandemic? and Are my concerns about COVID-19 considered “good cause” to resign?

Can an employee who is immune-compromised or is otherwise at risk for severe complications of COVID-19 decline to report to work?

Employees who are more susceptible to the most severe complications of COVID-19 may be able to use leave as provided in local policy and federal and state law. Some employees may be entitled to Family Medical Leave Act (FMLA) leave based on medical certification (see expanded provisions for paid leave under the Families First Coronavirus Response Act). Other employees might be able to work with accommodations outlined by a health professional in accordance with the Americans with Disabilities Act.

The ‘‘Families First Coronavirus Response Act" contains provisions related to leave and compensation for certain employees who have COVID-19, have family members with the disease, quarantine by medical orders, or self-quarantine. For information about the new law, click here.

Can an employee decline to report to work due to a lack of childcare for their own children resulting from school closures?

The "Families First Coronavirus Response Act" provides that an employee caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 precautions is eligible for 12 weeks of paid leave at the rate of 2/3 of the regular rate of pay, not to exceed $200 per day. This provides 12 weeks of paid leave that would otherwise potentially be unpaid leave under the Family Medical Leave Act (FMLA).

According to an U.S. Department of Labor addition to its frequently asked questions, an employee is eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

However, if your child’s school is giving you a choice between having your child attend in person or participate in a remote learning program for the fall you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance.

In addition, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. If the employee needs to take off more than 10 days in order to care for his/her family member because of the public health emergency (as opposed to the employee being sick themselves) then the employee is entitled not only to the two weeks of paid leave but also an additional 10 weeks of paid leave at two-thirds their salary (subject to some caps). These benefits are to be in addition to whatever leave the employee would otherwise be entitled to receive from his employer.

However, according to Department of Labor regulations, an employee may not take paid sick leave or paid expanded FMLA leave to care for his or her son or daughter unless, but for a need to care for the son or daughter, the employee would be able to perform work for his or her employer, either at the employee’s normal workplace or by telework. An employee caring for his or her son or daughter may not take paid sick leave or paid expanded FMLA leave where the employer does not have work for the employee.

If I am otherwise in good health and I do not have a medical condition that puts me at risk for the more severe form of COVID-19, must I report to work if I do not agree with my school district’s plan for addressing the pandemic?

Generally speaking – Yes. 

If you are concerned about returning to work due to potential exposure to the virus, you may have the following options:

  • resignation
  • filing a grievance about the district’s response to the pandemic or
  • taking medical leave.

The Texas Education Code imposes a deadline by which you must submit your resignation to avoid potential sanctions on your certification. That deadline is 45 calendar days prior to the first day of instruction, which has already passed for most school districts. For districts with a first day of instruction in mid-August, the 45-day deadline occurred  in early July.

What happens if I decide to resign, but the deadline has passed?

You may request to be released from your contract. If the district agrees, you may resign with no penalty in accordance with mutually agreed to terms. However, if the district declines to release you from your contract, you have a difficult decision to make. If the district does not agree to release you and you fail to come to work, you have abandoned your legally binding employment contract. If you abandon your contract without good cause, the district has 30 calendar days to file a written complaint with the State Board for Educator Certification. If timely filed, your teaching certificate may very well be subject to sanctions. You can learn more about these specific matters in the TCTA Legal Department’s resignation video series.

There are a couple of important exceptions to the laws and rules related to contract abandonment which provide that you can resign from your otherwise binding contract past the deadline, and without penalty, if you have what is known as “good cause” to resign from your contract.

Are my concerns about COVID-19 considered “good cause?”

It depends on your specific concerns. One reason to resign recognized as good cause for abandonment of contract is if you are ill or a close family member has a medical condition that requires you to serve as a caregiver to them. This may apply to a teacher who has an elderly family member or a child who is vulnerable and requires attention and care. Please understand that this protection does not extend to someone who is thinking of quitting his/her job in order to accept another teaching position closer to home, even if that would allow you to devote more time to care for your family member(s). Good cause to resign from your contract only exists if you intend to quit your job to stay home and serve as a full-time, necessary, caregiver.

Good cause may also exist if you have experienced a significant life change resulting from the pandemic after the resignation deadline has passed. For example, if you lose housing or childcare and must move as a result.

If you are a TCTA member who has been informed that you will not be released from your contract, but are still considering not reporting to work, please contact the TCTA Legal Department immediately at 888-879-8282 before making a final decision and prior to submitting your written resignation.

What if I am considering filing a grievance about my district’s plan for addressing COVID-19?

If you are a TCTA member and are considering this option, please give us a call. Our staff attorneys can discuss the specifics of your district’s plan to determine if it complies with the applicable legal requirements. Please bear in mind that if you choose to file a grievance, this does not mean that you do not have to report to work while it is pending. Finally, timelines for filing a grievance are typically short, some as short as 10 calendar days.   

Are there any types of leave that would allow me to stay home to care for a close family member who is vulnerable to the disease?

Such leave may be available to you. This is a complex issue, so TCTA members should contact the Legal Department to discuss your individual circumstances and whether you may qualify for leave.

If your district’s board of trustees has not yet decided on its plan for the upcoming school year, TCTA encourages you to voice your concerns and work constructively with your trustees. The Texas Education Code gives you the right to speak individually to board members regarding school related matters. You may contact them with your concerns and thoughts regarding various options that they may, or may not, be considering. You should attend (virtually or otherwise) board meetings at which these issues are scheduled to be discussed. Many school boards offer live streaming of meetings enabling your participation in the process, while observing social distancing. Even the most informed and concerned school districts are grappling with tremendous public health issues right now. The best way to make sure your concerns are heard and considered is to voice them in a constructive and professional manner.

Can my district require me to sign a waiver to access all my medical records?

The short answer is that you should not sign any sort of waiver without first consulting with the TCTA Legal Department.

Districts can make medical inquiries that are consistent with business necessity. In the context of COVID-19, the district can ask if you have symptoms of COVID-19 or if you have been in contact with anyone with COVID-19. It can also take your temperature and administer a COVID-19 test, if it takes steps to make sure the test is accurate. Additional information is available from the Equal Employment Opportunities Commission in recent guidance on its website.

If you are seeking a reasonable accommodation for a disability, such as the ability to work remotely or be transferred into a position where remote work is available, the district may request medical documentation to substantiate that you have a disability that is covered by the Americans with Disabilities Act. According to the EEOC in more general guidance on its website:

An employer may require an employee to provide documentation that is sufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation. This means that, in most circumstances, an employer cannot ask for an employee’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.

An employer can deny a request for a reasonable accommodation if the employee fails to cooperate and provide the requested medical certification, but if the employer’s request for records is overly broad, or if you need assistance in requesting an accommodation or have questions about medical inquiries, and if you are a TCTA member, you should call our Legal Department at 888-879-8282 for assistance from one of our staff attorneys.