Education Law Attorney
Kennedy & Graven, Chartered
As many school districts prepare to return to some form of hybrid or in-person learning this fall, many employees are already expressing concerns and requesting accommodations. Some of the most common requests come from employees who have a condition that places them at a higher risk of serious illness from COVID-19, or who live with someone who has such a condition. Districts should consult their school attorneys for specific advice as unique scenarios arise, but the following is a brief overview of some of the legal entitlements, options, and considerations districts should be keep in mind.
Remote Work Accommodations
EEOC guidance has indicated that employees who have conditions placing them at a higher risk of serious illness from COVID-19 likely have a qualifying disability for purposes of the Americans with Disabilities Act (“ADA”). Therefore, districts must engage in an interactive process to determine what reasonable accommodations can be provided that will enable the employee to perform the essential functions of their position. Governor Walz’s Executive Order 20-82 further says that school districts “must allow school staff whose health is at risk or who have members of their household whose health is at risk to work from home to the extent possible.”
School districts therefore must determine whether it is possible for the duties of a position to effectively be performed from home. If it is, a work-from-home accommodation should be granted to employees who have a high-risk condition or who live with someone who has a high-risk condition. If not, other accommodations should be considered: are there adjustments to the working environment, protective equipment, or schedule that would enable the employee to work in the building?
If working from home is not possible and no accommodations will allow the employee to work in the building, then a leave of absence may be the only reasonable accommodation available.
Families First Coronavirus Relief Act (“FFCRA”)
Through December 31, 2020, an employee may be entitled to up to two weeks of Emergency Paid Sick Leave under the FFCRA if they are unable to work because the employee: (1) is subject to a government quarantine order; (2) has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) is caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (5) is caring for a son or daughter whose school or childcare facility has been closed due to COVID-19; or (6) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Districts may not require employees to substitute or exhaust their accrued leave in order to access this paid benefit. For categories (1) through (3), employees are entitled to their regular rate of pay, up to $511 per day and $5,110 total. For categories (4) through (6), employees are entitled to two-thirds of their regular rate of pay, up to $200 per day and $2,000 total. These employees may, but cannot be not required to, use accrued leave to “top off” their pay in order to receive full compensation.
Employees with a childcare need under category (5) and who have worked at least 30 days may also be entitled to an additional 10 weeks of paid leave (at the two-thirds rate) under the FFCRA’s expansion of the Family and Medical Leave Act (“FMLA”). Districts can require that employees substitute their accrued leave benefits during this leave, but only if those benefits would otherwise be available to the employee under these circumstances.
FMLA
Regular FMLA leave also remains available for qualifying employees. The traditional FMLA rules apply; only employees who have worked for the employer for at least 12 months and for at least 1,250 hours during the previous 12 months are entitled to the benefit. An eligible employee may take up to 12 weeks of FMLA leave in a 12-month period if the employee has a “serious health condition” that makes the employee unable to perform the functions of the job, or if the employee is needed to provide care to a spouse, son, daughter, or parent who has a serious health condition. A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Simply being at a higher risk of illness due to COVID-19 or living with a family member who is at a higher risk, likely does not, on its own, constitute a “serious health condition.” But depending on the nature and severity of the condition, FMLA leave may be available to some employees.
Leave as an ADA Accommodation
Even if no other leave entitlement applies, an employee with a qualifying disability may still be entitled to a leave of absence as a reasonable accommodation if no other accommodations will allow them to perform their duties. As discussed above, an employee with a high-risk condition likely has a qualifying disability. An employee whose family member has a high-risk condition does not have a disability for purposes of the ADA; however, districts may still choose to be flexible and offer leave to these employees under the circumstances. These leaves of absence can be unpaid, except to the extent that employees have accrued leave benefits to apply.
Employees with General Safety Concerns
Some employees may simply feel that it is unsafe to come to work. Each request should be analyzed on its own merits, but if an employee has no high-risk health conditions, other qualifying disability, family members with high-risk conditions, or childcare needs due to closures, they likely do not have any legal entitlement to work from home or to take leave, beyond any applicable accrued leave. School districts have a right to expect employees without any qualifying exception to report to work. To best defend against any claim of unsafe working conditions, districts should be careful to comply with all applicable COVID-preparedness guidance from the CDC, the Minnesota Department of Health, the Minnesota Department of Labor & Industry, the Minnesota Department of Education, and any other applicable guidance. If an employee raises a specific concern about a safety measure they believe is lacking, districts should review and address the concern in good faith.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Adam Wattenbarger is an education law attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9306 or http://www.kennedy-graven.com.
© Adam C. Wattenbarger (2020). Used by permission.
