“Going to School” During A Pandemic: Wear Your Face Coverings. Practice Social Distancing. Wash Your Hands Frequently. And If You’re Sick, Please Stay Home.
by Malina Piontek, Attorney Going back to school looks a lot different given the COVID-19 pandemic. While some districts started school earlier than usual, others pushed the start date back. And as far as what instruction looks like, some school districts have students attending fulltime, five days a week, while others have hybrid models, or complete virtual/online learning. AWSA is committed to continuing to provide specific COVID-19 information to its members at all leadership levels through its Coronavirus Information for Schools forum. Members should also keep abreast of COVID-19 developments and updates from their local communities and counties. With that in mind, this edition of the Update Bulletin will attempt to address from a more universal perspective the subjects of the most commonly asked Legal Hotline questions about COVID-19. 1. To Mask or Not to Mask? Face Masks Are Required for the Time Being. On July 30, 2020, Gov. Evers issued an emergency order (Emergency Order # 1) that requires all individuals in Wisconsin who are five years of age and older to wear a face covering when they are indoors or in an enclosed space with anyone outside their household living unit (also referred to as “the Mask Order”). "Face covering'' means a piece of cloth or other material that is worn to cover the nose and mouth completely. A "face covering'' includes but is not limited to a bandana, a cloth face mask, a disposable or paper mask, a neck gaiter, or a religious face covering. A "face covering'' does not include face shields, mesh masks, masks with holes or openings, or masks with vents. (See, CDC Considerations for Wearing Cloth Face Coverings for additional and up-to-date information.) Emergency Order #1 is in effect from August 1 until September 28, 2020, unless there is a subsequent superseding order. Under Emergency Order #1, face coverings are strongly recommended, but not required, if outdoors when maintaining physical distancing is not possible. The Order also enumerates exceptions to the requirement, listing activities such as when an individual is eating, drinking or swimming. Finally, individuals with health conditions or disabilities that would preclude the wearing of a face covering safely are also exempt from the requirement. 2. What Does In-Person Teaching Look Like Under the Mask Order? One of the exceptions to the Mask Order reads: “While a single individual is giving a religious, political, media, educational, artistic, cultural, musical, or theatrical presentation for an audience, the single speaker may remove the face covering when actively speaking. While the face covering is removed, the speaker must remain at least 6 feet away from all other individuals at all times.” Under this exception, a teacher is NOT required to wear a mask while actively speaking while teaching, although the teacher must remain at least six feet away from his/her students. It should be noted that, even if the Mask Order doesn't require the wearing of a face mask in an exception category, an employer can mandate the wearing of a mask for safety reasons. Indeed, several Wisconsin school districts have done just that. Moreover, many school districts are requiring students at all grade levels to wear face masks while attending school in person. 3. Can a Staff Member Be Excused from Wearing A Mask Due to Having a Medical Condition? (Note that this question does not include the exception in Emergency Order 1 above which permits a single individual giving an educational presentation to remove his/her mask while actively speaking.) In this scenario, the staff member’s request not to wear a mask because of a medical condition triggers the interactive process under the ADA; for example, the employee may have a respiratory impairment, anxiety disorder, autoimmune condition, or similar conditions. If an employee indicates that s/he is unable to wear a mask due to having an ADA-qualifying disability, the employee should be asked to provide medical documentation to support that request. Then, the parties should engage in a discussion to determine a reasonable accommodation. In addressing this situation from an ADA standpoint, employers should ask:
A reasonable accommodation may be to allow the employee to work remotely, to assign new job duties or location, or to provide Family Medical Leave under the FMLA. An employee is entitled to take FMLA leave when: 1) they have a serious health condition that 2) renders them unable to perform one or more essential job functions. Of course, FMLA leave is temporary, in most cases maxing out at 12 weeks; and some or all of the leave may be unpaid, which may make taking Family Medical Leave a less than satisfactory outcome from the employee’s point of view. Principals will want to work with human resources (where available) to navigate the ADA’s process for obtaining required medical information to determine whether the employee is covered by the ADA; engaging in the interactive process; and implementing an accommodation as warranted. 4. My Community is Vocally Anti-Mask (and Anti-Emergency Order #1). Before Emergency Order #1 Was Issued, My School Board Passed A Mask Policy, Requiring Students and Staff to Wear Masks Indoors. Do I Have to Enforce Emergency Order #1? What Do I Do If I See A Staff Member Who Isn’t Wearing A Mask? Wearing masks is a divisive topic across the state. If an employee refuses to comply with the Mask Order for other than an ADA-qualifying reason, best practice would be to have an administrator remind the staff member of Emergency Order #1 and any board policies that echo the Order by requiring staff to wear masks at work. (Even if some individual board members disagree with Emergency Order #1, in this scenario, the board, as a body, has passed a policy requiring that face coverings be worn at work. Thus, administration has an obligation to follow and consistently enforce the policy.) If the employee still refuses, the employee may be sent home without pay and the district can follow the normal process to discipline an employee who fails to comply with board policies. In this instance, the administrator is not enforcing Emergency Order #1, but is acting within the parameters of local school board policy. Of course, given local politics, administration should be on the same page with how these situations are handled. Consideration should be given to ascertaining with the board its commitment to its own policies. One approach may be to give employees warnings before enforcing the policy through disciplinary action. Finally, principals will want to work with human resources (where available) to navigate the process of following up with staff members who outright refuse to wear a mask. 5. What If an Employee Requests Time Off or Doesn’t Want to Return to Work Because They’re at Higher Risk of Contracting COVID? The CDC advises individuals who are at higher risk for severe illness to take extra precautions to avoid getting COVID. That being said, high risk does not necessarily mean the individual has a disability. Similar to exemptions from wearing a mask in Question # 3 herein, the staff member’s request for time off or not to return to work at all may trigger an ADA inquiry. If the employee makes a request for an accommodation based upon medical evidence that s/he has a disability, the district must make a determination whether the requested accommodation is reasonable. It is unlikely that a request for a long term (more than three to six months) leave of absence would be a reasonable accommodation. If there is no verified underlying medical condition that constitutes a disability, districts may require a high-risk employee to return to work. That being said, given the shortage of educators, some districts are working with employees who fall into high risk categories but who are not disabled, or who have high risk family members, to provide unpaid leaves of absence for the 2020-2021 school year with a guarantee of a position in the 2021-2022 school year. 6. Can Students Be Disciplined for Wearing Inappropriate Face Masks, or For Not Wearing Masks? Face masks are subject to the student dress code. Principals should enforce dress codes with regard to inappropriate face masks to the same extent they enforce them for t-shirts (and other articles of clothing), which could result in disciplinary action. An entire legal treatise could be (and has been) dedicated to the topic of student speech through clothing. In a nutshell, principals can direct students to remove face masks with profane, vulgar or lewd statements or images (it is recommended that the school provide the student with a replacement mask). But it gets trickier if the statement or image is political or promotes a social cause. In general, principals can restrict students’ speech rights (including those expressed on a face mask or t-shirt) if they have a reason to believe that the expression will substantially interfere with or disrupt the educational environment. With everything that’s been going on with protests over the summer, it is highly recommended that principals consult with legal counsel when faced with student speech that is political or that promotes a social cause. If, on the other hand, the face mask in question is “inappropriate” because it doesn’t comply with state or district requirements to cover the nose and mouth completely, principals should be prepared to provide the student with a face mask that provides adequate protection. Many school boards are requiring students who attend school in person to wear face masks for their safety, and the safety of others at school. Some boards are even making mask wearing a condition of in-person learning. School districts with mask requirements should allow for possible exceptions based on students’ individual health conditions or disabilities, similar to those addressed for employees in Question 3 above. Principals should have a supply of masks on hand to provide to students who come to school without one. In a situation involving a student who does not fall within an exception to the board’s mask mandate, the student may be disciplined for violating school rules. Consequences for violating the mask rule could include, but is not limited to, warning the student and giving him/her a mask to wear, sending the student home on an out-of-school suspension, temporarily requiring the student to attend school online, or permanent revocation of in-person attendance privileges. Before determining the consequences, principals should investigate the situation to determine whether the student inadvertently forgot to wear his/her mask, or made a conscious decision to forego wearing a mask in violation of the rule. Principals should also consider the extent to which the student’s actions put others’ health and safety at risk. Finally, principals should consult with district legal counsel in situations in which students claim freedom of speech as the basis for not wearing a mask. 7. I Heard About Some New Federal Law That Expands FMLA. What Do I Need to Know About It? The federal Families First Coronavirus Response Act (FFCRA) created a new entitlement for workers to receive paid sick leave and paid FMLA between April 1 and December 31, 2020. The FFCRA is intended to help as many individuals as possible to avoid financial exigency, job loss and loss of health insurance during this critical window. Generally, FFCRA provides that school districts must provide to all employees:
A school district must also provide to employees that it has employed for at least 30 days:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:
8. Employees Can Take FFCRA Leave If They Are Unable to Work/Telework Because They Have to Care for Their Child Whose School Is Closed Due to COVID-19. How Do We Know If A School Is “Closed”? If the physical location of a school where a child receives instruction closes and moves online, it is considered “closed” for purposes of the FFCRA (see Department of Labor (DOL) FAQ #70), and employers are required to provide leave to eligible employees. Employees still must provide an explanation for the reason for leave and provide documentation to support their leave request, 9. What Documentation Must Employees Provide to Support the Need for FFCRA Leave to Care for Their Child When School/Childcare is Closed or Their Childcare Provider is Unavailable? If an employee has requested FFCRA leave to care for a child whose school/childcare is closed or childcare is unavailable, the employee must provide (either orally or in writing) the following information:
When the school or place of care is closed or the childcare provider is unavailable, the employee must also provide:
10. Do Employees Get Full Pay or Only ⅔ Pay If They Can’t Work/Telework Because Their School or Childcare is Closed? According to the DOL (see FAQ #10), under the FFCRA, an employee qualifies for EFML if the employee is caring for a child whose school or place of childcare is closed (or childcare provider is unavailable) for reasons related to COVID-19. The employee may take both paid sick leave and EFML to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19. The Emergency Paid Sick Leave Act (EPSLA) provides for an initial two weeks of paid leave. This period covers the first ten workdays of EFML, which are otherwise unpaid. After the first ten workdays have elapsed, the employee will receive 2/3 of his/her regular rate of pay.
Conclusion In this ever-changing landscape, there is at least one constant: the need to be prepared for changes to come throughout the next school year. School leaders should monitor guidance affecting their communities and be prepared to shift between in-person, physically-distanced, and virtual learning throughout the school year. They should also be sensitive to the new federal leave entitlements, and work with staff, human resources and district legal counsel as needed to ensure they are in compliance with the law.
This article was prepared by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037 or email her at [email protected]. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice.
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