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COVID-19 & Education FAQ

This page will continue to be updated as more information is available. The following is for informational purposes only and is not intended to be legal advice. Each situation is unique and most districts will make a good faith attempt to assist you. Your particular situation may require discussion with a member of our legal team. Please send additional questions that you would like to see here, or questions specific to your situation, to legal@proedtn.org

 

 

As you know, there is a vast amount of information concerning the impact of Covid-19 on our schools. The information is generated by many sources, including the media, government, and science. Much of this information is very new and still developing, created by the changes and adjustments to laws and regulations that occur when a pandemic and its impact fluctuates day to day. Our lives as American Citizens have drastically changed due to this whiplash of change and no area has been more affected than in the education of our children.


We have received many questions which, although reasonable and understandable, have no “right or wrong” answers. Levels of reason and discretion must then prevail. Other questions are difficult to answer as the medical community, legislators, and administrators are in the process of developing policies and regulations to diagnose, treat, and control exposure to the Covid-19 virus.

 

In short, some issues and solutions are still in development; therefore, regular and frequent progress reports in this format will be provided by Professional Educators of Tennessee. We will do our best to be responsive and keep you informed of all questions, comments, and observations made by our members.


We have received the following questions and valid observations from our members. We will indicate a date of revision on all future updates and intend on sharing this with the respective school districts.We encourage you to participate, to the extent possible, in all processes focused on the design and operation of a safe school environment. This may include committee participation or may be thoughtful feedback to your administration.

 


 

2020-2021 BACK -TO-SCHOOL 
(updated July 15, 2020)

 

Can the administration require me to use my paid leave before using the FFCRA paid sick leave?

 

ANSWER: No. That is if, you are unable to work for the following reasons related to COVID-19, you can take the emergency paid sick leave under the FFCRA first before using any other type of leave: (1) you are subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) you have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) you are experiencing symptoms of COVID-19 and are seeking a medical diagnosis; (4) you are caring for an individual who is subject to an order as described in (1), or who has been advised as described in (2); or (5) you are caring for your son or daughter whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 related reasons.

 


Do 9-month teachers qualify for the expanded paid FMLA?


Yes. Regardless of prior law, you still may qualify for the new expanded FMLA leave

 


I have exhausted all FMLA leave for the year. Can I obtain leave under the FFCRA?


No, but you are still entitled to emergency paid sick leave benefits.

 


When a vaccine is developed, will there be required inoculation?

Scientists and medical researchers are hopeful that we will have a Covid-19 vaccine by the end of this year. Regulations requiring certain vaccinations before entering school are mandated by the State of Tennessee. The State of Tennessee recognizes medical and religious exemptions but not during an outbreak.

 



May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

 



If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?

You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.

Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.




Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?


No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.




Is all leave under the FMLA now paid leave?


No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

 



Are the paid sick leave and expanded family and medical leave requirements retroactive?

No.

 



Under what circumstances may an employer require an employee to use his or her existing leave under a company policy and when does the choice belong to the employee under the Department’s regulations, specifically 29 CFR 826.23(c), 826.24(d), 826.60(b) and 826.160(c)?

Paid sick leave under the Emergency Paid Sick Leave Act is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with—that is, cover the same hours as—paid sick leave under the Emergency Paid Sick Leave Act.

In contrast, an employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason run concurrently with paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. In this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan—including vacation and/or personal leave (typically not sick or medical leave). However, the employer may only obtain tax credits for wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate limits in the Emergency Family and Medical Leave Expansion Act ($200 per day or $10,000 in total). If the employee exhausts available paid leave under the employer’s plan, but has more paid expanded and medical family leave available, the employee will receive any remaining paid expanded and medical family in the amounts and subject to the daily and aggregate limits in the Emergency Family and Medical Leave Expansion Act. Additionally, provided both an employer and employee agree, and subject to federal or state law, paid leave provided by an employer may supplement 2/3 pay under the Emergency Family and Medical Leave Expansion Act so that the employee may receive the full amount of the employee’s normal compensation.

Finally, an employee may elect—but may not be required by the employer—to take paid sick leave under the Emergency Paid Sick Leave Act or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. If, however, an employee has used some or all paid sick leave under the Emergency Paid Sick Leave Act, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid. During this period of unpaid leave under the Emergency Family and Medical Leave Expansion Act, the employee may choose—but the employer may not require the employee—to use paid leave under the employer’s policies that would be available to the employee to take in order to care for the employee’s child or children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19 related reason concurrently with the unpaid leave.

 



Are stay-at-home and shelter-in-place orders the same as quarantine or isolation orders? If so, when can I take leave under the FFCRA for reasons relating to one of those orders?

Yes, for purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority. However, in order for such an order to qualify you for leave, being subject to the order must be the reason you are unable to perform work (or telework) that your employer has for you. You may not take paid leave due to such an order if your employer does not have work for you to perform as a result of the order or for other reasons.

For example, if you are prohibited from leaving a containment zone and your employer remains open outside the containment zone and has work you cannot perform because you cannot leave the containment zone, you may take paid leave under the FFCRA. Similarly, if you are ordered to stay at home by a government official for fourteen days because you were on a cruise ship where other passengers tested positive for COVID-19, and your employer has work for you to do, you are also entitled to paid sick leave if you cannot work (or telework) because of the order. If, however, your employer closed one or more locations because of a quarantine or isolation order and, as a result of that closure, there was no work for you to perform, you are not entitled to leave under the FFCRA and should seek unemployment compensation through your State Unemployment Insurance Office.

 



What if I have COVID-19 symptoms and take time to seek medical diagnosis? What documentation can the administration require?

You should identify your symptoms and a date for a test or doctor’s appointment. The administrator may not, however, require you to provide further documentation or similar certification that you sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms. The minimal documentation required to take this leave is intentional so that if you have COVID-19 symptoms you may take leave and slow the spread of COVID-19.

Please note, however, that if you were to take unpaid leave under the FMLA, the FMLA’s documentation requirements are different and apply. Further, if you is concurrently take another type of paid leave, any documentation requirements relevant to that leave still apply.

 



I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

 


 

What do I do when I receive a form asking whether I am coming back and if not to “please comment”?  

 

ANSWER: We recommend that you consider answering that you are in fact returning. A further consideration is to share any disability that makes you a risk for the virus and request an accommodation such as working remotely. Make sure that any medical information is maintained in the strictest confidence and meets HIPAA privacy guidelines. You will be asked to provide supporting medical documentation of your disability and how it relates to your job responsibilities.

 



Children, especially young children, cannot be expected to stay six feet away from everyone else during an entire school day.

ANSWER: We agree, and the level of supervision and other resources needed is challenging. Staggered and smaller classes would help. We think masks, while largely beneficial, should be opt-in by districts, and teachers cannot be expected to discipline children for wearing them.

 


 

Children cannot be expected to wear masks of any kind for the duration of a school day.

ANSWER: This is a challenge and outside “breaks” for mask removal may be needed. Areas of seclusion may permit removal of masks for a period of time. Educators cannot be expected to discipline children for masks.

 


 

The typical American school cannot accommodate social distancing of their student population for the duration of the school day.

ANSWER: Without precise measures to enforce these rules, we agree. Smaller groups is the key.

 


 

What happens when a teacher becomes infected with Covid-19? Do the students in their class have to quarantine? What about other colleagues?

ANSWER: Our opinion is that yes, all exposed teachers and students would need to be quarantined.

 


 

Does the teacher have to use their limited sick days on a mandatory 2 week quarantine so when they get the Flu in February they have to take unpaid days?

ANSWER: We believe this falls under the FFCRA paid sick pay provision and possibly Tennessee Code Annotated § 49-5-716: A teacher, including a teacher on preapproved leave or other type of leave, shall not be charged with a day of leave for any day on which the teacher’s school or the school district is closed due to natural disaster, inclement weather, serious outbreak of contagious illness, other unexpected events. This should be clarified before reopening.

 


 

If a teacher becomes infected and contact tracers determine they contracted it at school, is that a worker's compensation claim? 

ANSWER: Possibly, but in Tennessee, worker’s compensation provides a statutory, exclusive remedy for injuries that are work-related. Injury or infection solely emanating from the workplace is challenging.

 


 

Without concurrent supervision of adolescents outside of the school, how can we prevent further, ultimate spread of the infection in the school?

ANSWER: Very difficult in our opinion and risky. This should be addressed and school-student family communication and accountability are essential.

 


 

How often will teachers be tested? Cafeteria workers? Custodians? Front office types?

ANSWER: No state or federal direction has been provided, but we feel this should be included in the return to school plan.

 


 

Are teachers/employees going to be receiving hazard pay for working in a dangerous environment? What about a bonus for the LOADS of extra cleaning and administrative work they’re going to have to do? 

ANSWER: We are unaware of any such plan by any district.

 


 

What about teachers/employees that are high risk? Will they be penalized for choosing their safety over their jobs? What if they're not high risk, but someone in their household is? Who determines the threshold for "at-risk" that qualifies for exemptions?

ANSWER: Further research is required and we will update with future revisions as information becomes available.

 


 

What happens when students get it? Will schools be shut down? For how long? Will they wait to open until everyone gets tested and you need a negative result to return to school? Who pays for the tests? What if a student's family can't afford a test?

ANSWER: Further research is required and we will update with future revisions as information becomes available.

 



 

SPRING 2020 CLOSURES
(updated March 2020)

 

Will teachers be paid while they are out?  

 

ANSWER: There should be no reason for teachers to be unpaid. There are some positions, like cafeteria workers, who are contract labor. In the short term, we expect many of those to be paid as well. 

 

per TN Department of Education:

Personnel plans for teachers should comply with T.C.A. § 49-5-
716, which states:

A teacher, including a teacher on preapproved leave or other type of leave, shall not be charged with a day of leave for any day on which the teacher's school or the school district is closed due to natural disaster, inclement weather, serious outbreak of contagious illness, or other unexpected event.

 



Will there be a cut to this year's BEP funding?

TNDOE RESPONSE: There will be no cuts to BEP funding. Funding is based on prior year data, and payments will continue as scheduled. Please note that, if needed, the calculation for BEP payments may be adjusted depending on the length of closures. For more information, please see our Finance School Funding in Event of a School Closure FAQ.

 


 

I understand that the governor decreased teacher raises from 4% to 2%.  Will teachers actually get the raise or is it written in such a way that the local Board of Education can use applying their own discretion?

ANSWER:  The districts can only spend the portion of BEP that the raise is applied to for instructional salaries. Some districts will pass this on to teachers, while some will use the dollars for smaller raises and/or for unfunded positions. They will have to disclose that to the state in future reports. 

 

 

When will school districts know if Governor Lee will extend closings and for how long will school districts be asked or required to close?

 

TNDOE RESPONSE: At this time, there have been varying return dates reported by school districts across the state. It is too early to predict what is necessary to keep schools and communities safe. However, we are committed to providing direction to superintendents no later than Friday, March 27th regarding potential extension of the recommendation for school closures.

 


 

Will the school year be extended? Will teachers have to work during the summer?

 

The state has waived the 180 instructional day requirement. Every LEA should apply for a waiver. Decisions regarding closures and how to handle instruction for the remainder of the year are still being determined as circumstances surrounding the pandemic continue to fluctuate.

 


 

Has consideration been given to altering the guidance on credit recovery, including the monitoring requirement?

TNDOE RESPONSE: According to Tennessee State Board of Education High School Policy 2.103 in 7b, “Local boards of education shall develop credit recovery program rules, regulations, and processes. These policies shall be formally adopted by the local board of education...” Additionally, in 7c iii guidance is provided for local boards to set requirements including, but not limited to, attendance, discipline, availability of coursework, availability of space, appropriate progress, and grades.

 

 

Guidance for students who would need credit recovery to be promoted or graduate?

See response above.

 


 

For IEP meetings, can districts mandate that parents and/or their children come in person to the school to ensure districts stay within compliance with IDEA?

TNDOE RESPONSE: The IDEA requires that the child's IEP be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved; and revise the IEP, as appropriate. LEAs should make every attempt to conduct annual IEP team meetings during periods of school closure. However, IEP Teams are not required to meet in person while schools are closed.If there is a need to an IEP meeting, the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation requirements, such as video conferences and conference calls. Further, if changes need to be made to the IEP, the parent of a child with a disability and the public agency may agree not to convene an IEP Team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child's current IEP. In addition, when conducting IEP Team meetings and placement meetings, the parent of a child with a disability and a public agency may agree to use alternative means of meeting participation requirements, such as video conferences and conference calls. If an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. IEP team meeting timelines may be extended only if: 1) The LEA has reasonably determined the use of virtual technology is not a suitable method of conducting the required meeting; or 2) Information necessary for the IEP team’s deliberation is not attainable due to recommendations of the state or local health departments. For more information, refer to this toolkit for supporting special populations during school closure on TDOE’s website. 

 


 

How should we handle teacher evaluations that are still in progress? Do we have to complete second semester teacher observations/evaluations?


TNDOE RESPONSE: The TDOE is actively working to provide a guidance document that reflects the changes in the teacher evaluation system based on the passage of HB 2818/ SB 2672. Please submit any teacher evaluation related questions to David.Donaldson@tn.gov to add to the FAQ guidance
document.

 


 

Would TDOE consider putting together a toolkit for parents to support their students instruction?

TNDOE RESPONSE: TDOE is in the process of developing a resource for parents, which consolidates multiple sources and topics for parent-facing guidance.

 


 

COVID-19 & Education FAQ

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