Teachers who fear returning to the classroom due to COVID-19 might consider using federal disability and medical-leave laws to force schools to allow them to teach remotely from home, according to a legal memo prepared for the national American Federation of Teachers (AFT) union.
But the memo and the union caution that expected resistance from schools makes it likely that the issue will wind up being decided in the courts – and may also lead to teachers’ strikes.
AFT, an affiliate of the AFL-CIO, represents 1.7 million members in more than 3,000 local affiliates nationwide, including Connecticut.
The memo cites the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
The ADA requires employers to provide eligible employees with “reasonable accommodations” in the workplace, including modified work schedules, telework, or extended leave from work.
FMLA allows eligible employees to take up to 12 weeks of unpaid leave per year because of a serious medical condition or to care for a spouse, child, or parent.
How those laws, especially the ADA, will apply to teachers affected or by COVID-19 was the thrust of the 34-page memo that is being used to advise teachers as schools in Connecticut and the nation prepare to reopen.
“ADA may provide employees at high risk of COVID-19-related medical complications with necessary accommodations during the pandemic,” read a portion of the memo, written by an Ohio law firm and submitted earlier this month to AFT President Randi Weingarten. “However, COVID-19 is new, and related employment case law is, therefore, virtually nonexistent.”
A critical question is whether remote instruction is a “reasonable accommodation” under the ADA.
Courts have historically considered an employee’s physical presence in the workplace to be fundamental, unless the employee can prove the essential functions of the job can be done remotely, according to the memo.
“Nonetheless, recent decisions acknowledge that changes in technology require employers to consider the feasibility of telework based on current conditions rather than the past,” the memo said. “Indeed, in the COVID-19 era, remote meetings have become ordinary and routine for millions of workers and remote instruction has been implemented.”
That unchartered legal territory, and the unique on-the-ground impact of the pandemic on schools and government, will likely present challenges for teachers trying to use the laws.
“Assuming employees prove they have a disability, COVID-19-related funding issues, understaffing, disagreements over the use and scope of remote work and other accommodations, and inconsistent and conservative treatment of accommodation requests in the courts may frustrate the efforts of individual employees to obtain relief,” the memo said.
Regarding FMLA, the memo details numerous scenarios in which a teacher may be granted leave to care for family members, but also says: “Employees are not entitled to leave under the FMLA merely because they fear exposure to COVID-19 in the workplace.”
Weingarten has said a strike by AFT members may be an option in districts that members believe do not have a safe reopening plan.
“I don’t take anything off the table when it comes to trying to make sure people are safe,” Weingarten said.
Jan Hochadel, president of AFT Connecticut, a statewide labor federation of more than 90 local public-employee unions including teachers and other school staff, said she sees “major flaws” in Connecticut’s reopening plan.
The state education department’s published “guidance” so far emphasizes a full-time, in-person return to the classroom with some exceptions.
“Our member educators want nothing more than to safely reopen school buildings and welcome back their students to in-person learning,” Hochadel said. “Until that can be assured, all options must be thoughtfully considered and any contingency plans should be carefully deliberated.”
Each school district’s choice between in-person or remote distance learning, or a hybrid of the two, must be submitted to the State Department of Education by Friday.
Tuesday, a union representing thousands of state teachers released its “Safe Learning Plan,” calling for delayed openings, staggered schedules, weekly testing for all students, teachers and staff who return to school, distance learning and guaranteed funding.
The Connecticut Education Association (CEA) said the state’s guidance “raises serious questions about maintaining the safety of everyone in our school communities during a pandemic that is not fully under control.”
A Connecticut teacher said she and many other teachers are terrified at the prospect of returning to the classroom in a matter of weeks.
“I don’t want to be part of a social experiment based on the poor decisions of government,” she said. “I love my students. But I don’t want to die because of school. I don’t want my colleagues to die and I don’t want my students to get sick and die.”