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Know Your Rights

Get guidance from AEA’s legal experts relating to your rights, responsibilities, pay, and benefits amid school reopenings.

It didn’t seem possible, but educators have been asked to do even more for students since the outbreak of the coronavirus. We hope these resources will help you take care of yourself and your family while you do the work you love.

Background and Updates 

COVID-19 Pandemic: As you are all aware, the world has seen a widespread outbreak of a new coronavirus that causes a disease known as COVID-19. Those who become infected by the coronavirus experience a range of symptoms, generally including a fever, cough, and shortness of breath. The symptoms usually manifest within 2-14 days of exposure. In many cases, the illness is mild, but for some the illness may be severe or even life threatening. The virus presents a greater concern than some other viruses, such as seasonal flu, because of its transmissibility and clinical severity and because no vaccination currently exists for it. 

Current CDC guidance indicates that the following groups are at an increased risk of severe illness from COVID-19: (1) people who are 65 years old or older or (2) people with underlying medical conditions, including the following:

  • Chronic kidney disease
  • COPD (chronic obstructive pulmonary disease)
  • Immunocompromised state (weakened immune system) from solid organ transplant
  • Obesity (body mass index (BMI) of 30 or higher)
  • Serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
  • Sickle cell disease
  • Type 2 diabetes mellitus

With the possible exception of obesity, all of the above conditions are generally recognized as disabilities under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

In addition, the CDC indicates that people with the following conditions, among other conditions listed at the link above, “might be at an increased risk for severe illness” from COVID-19:

  • Moderate to severe asthma
  • Cystic fibrosis
  • Hypertension (or high blood pressure)
  •  Immunocompromised state (weakened immune system) from other causes
  • Liver disease
  • Pregnancy
  • Smoking
  • Type 1 diabetes mellitus

Most of these conditions, but not all, are also generally recognized as disabilities under the ADA and the Rehabilitation Act.

You can find more information concerning the disease, including information concerning the extent of the outbreak in Arizona and school-related guidance, at the following websites: 

School Reopening: For weeks, the education community has been working on planning and preparing for schools to reopen.  The Arizona Department of Education (ADE) created a taskforce of school leaders, educators, and other stakeholders to prepare guidance on reopening schools, culminating in the issuance of a “Roadmap for Reopening Schools.”  AEA created a “New Vision for Arizona Schools” Taskforce, chaired by AEA Vice President Marisol Garcia, to  address, among other things, school reopenings and a transition back to school buildings.  The resulting report highlights specific concerns and recommendations and approaches the issues from a variety of perspectives.  Districts -- as well as AEA and local associations -- have been putting out surveys and creating plans related to school reopenings and the model(s) each district will use to deliver instruction (broadly speaking, online, in person, or hybrid/flex).  

Just as many schools had put out their plans for the coming school year, on June 24, the Governor issued an executive order and announced a plan that brought major changes.  The plan, known as “AZCares,” uses CARES Act money given to the State to fund a grant program designed to minimize the funding impact to schools of potential declines in enrollment and having fewer students attend in person (and more AOI students).  Districts receiving a grant will receive funding based on the greater of 98% of prior year enrollment or current year enrollment.  Under the plan and Executive Order 2020-41, districts may offer online instruction or a hybrid model, but in order to do so and to remain eligible for the grant program, districts must meet several conditions.  One condition they have to meet is that they have to be physically open the same number of days per week as last school year.  Districts must also offer an in-person option consisting of “free onsite learning for students who need a place to go during the day.”  The order would also have required at least 180 days of school. 

Five days later, on June 29, Governor Ducey issued Executive Order 2020-44. The order pushed back the start of in-person classes until August 17, although it allowed districts to begin prior to then on their regularly scheduled start date through distance learning.  The order also directed the Arizona Department of Education to analyze “the need to waive the number of school days that schools are required to provide schooling and the impact of such a waiver.” 

[Update]:  On July 23, the Governor issued Executive Order 2020-51.  The order directs ADHS to “develop public health benchmarks for the safe return of in-person, teacher-led classroom instruction,” and to “make them available no later than August 7, 2020.”  The benchmarks are to be informed by CDC guidance.  Rather than being required preconditions for reopening schools, the benchmarks are “recommendations” that school districts “shall consider,” along with “guidance from county health officials, community needs and available resources,” as they determine “when in-person, teacher-led classroom instruction can safely be made available.”  Accordingly, the date for returning to in-person classroom instruction is a decision to be made by the district.  Each district must both adopt a mitigation plan that incorporates CDC-recommended mitigation strategies and post the plan to its website prior to opening a school building for either on-site support services or in-person instruction. 

In addition, the executive order requires school districts to begin teacher-led distance learning instruction by the first day of the school district’s instructional calendar.  To the extent possible, schools should offer “synchronous learning where a teacher provides instruction in real-time.”  Instruction provided by means of distance learning counts toward the minimum number of instructional days (180) or an equivalent number of hours.  Students receiving instruction via distance learning will still be treated as AOI students (as Executive Order 2020-41 provided) for purposes of school funding.  Districts that comply with all three executive orders will be eligible to receive grant funding from the Enrollment Stability Grant Program to make up any potential funding shortfall that may occur.  

Also, Executive Order 2020-51 reiterates that districts must begin offering “free on-site learning opportunities and support services for students who need a place to go during the day” by August 17, 2020, even for districts that are only offering distance learning at that point.  Such on-site learning opportunities include in-person support services such as student supervision and strategic support for students in need during standard school hours, which may include teacher-led or paraprofessional support for students with distance learning instructions.  Districts may apply to ADE for a waiver of the requirement to provide free on-site learning if a county health department, together with ADHS, advises closing an entire school district due to an outbreak of the virus or if a tribal sovereign nation issues a stay-at-home order impacting a school district.

Further, Executive Order 2020-51 also requires districts to create a policy requiring face coverings, such as face masks or face shields, for all staff and students over the age of five until ADHS determines they are no longer necessary.  Under such a policy, face coverings will not be required (1) where students can socially distance, (2) when students are outside in playground settings with distancing, (3) for breaks for students to take off their face covering in a safe environment, (4) where children under under the age of 2, or (5) for anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.  Schools must incorporate other restrictions and exceptions consistent with guidance from the CDC. 

Finally, Executive Order 2020-51 provides that “Arizona’s public schools may continue to pay their employees or classes of employees, including hourly employees, during periods of school building closure,” as long as (1) the district’s governing board determines that such payments are necessary to preserve a properly trained, qualified and experienced workforce and that the district has sufficient revenues to continue payments due to school building closures and (2) employees remain committed and available to work during their normal work hours or during periods of school building closures.

ADE issued a new set of FAQs to provide additional guidance on these orders.  Among other things, the new set of FAQs gives more information concerning what the on-site learning option consists of and what it might look like.  It states that on-site learning and support services “include but are not limited to student supervision, nutrition, health services, strategic support, or teacher-led/paraprofessional support for students participating in distance learning.”  Such support services “will be available to a limited number of students with special needs” and are also for “students who need a safe place to go to engage in distance learning away from home.”  Districts offering the distance learning model do not have to offer traditional teacher-led, in-person classroom instruction in order to comply with the requirement for “free on-site learning” for students who need it.  A district with multiple school sites may designate a single site to be open for free on-site learning (rather than having to have each school open for this purpose).  A district may also opt to partner with community-based organizations (such as the Boys and Girls Club) to provide on-site support services for students. 

Stay-at-Home Order and Current Restrictions: On May 12, the Governor rescinded the stay-at-home order (effective May 16) by Executive Order 2020-36, although some prior executive orders remain in effect.  Executive Order 2020-36 still advises those who are particularly vulnerable to COVID-19 to limit time away from home.  It also advises everyone to continue the practice of social distancing and to take other reasonable precautions, among other things.

In light of the dramatic increase in the number of COVID-19 cases following the lifting of the stay-at-home order, the Governor issued Executive Order 2020-40 (“Containing the Spread of COVID-19”) on June 17 and Executive Order 2020-43 (“Pausing of Arizona’s Reopening”) on June 29.  The first order permits counties, cities, and towns to adopt policies regarding wearing face masks in public (a prior order had prohibited them from doing so).  In response, many local governments adopted policies mandating face masks in public.  The second order generally prohibits public organized events of 50 or more people (excluding religious gatherings).  It also closes bars, gyms/fitness clubs, indoor movie theaters, and water parks and tubing operations.  On July 9, the Governor issued a further order, Executive Order 2020-47, that imposes limits on indoor dining and directs all buffets, cafeteria style and self-serve food bars at restaurants to close.

Federal Response: Families First Coronavirus Response Act (FFCRA)

On March 18, 2020, the Senate passed and the President signed a legislative package in response to the spread of the coronavirus.

HR 6201, known as the Families First Coronavirus Response Act (FFCRA), became effective on April 1, 2020 and applies in relevant part through the end of this year.  The Act applies to all public school districts regardless of size.  Among other things, the FFCRA provides school employees with Emergency Paid Sick Leave and Public Health Emergency Leave, in addition to any other available leave benefits employees may have, as follows:

Emergency Paid Sick Leave:

  • Full-time employees are entitled to 80 hours of paid sick time (the equivalent of 10 eight-hour days).
  • Part-time employees are entitled to the number of hours they ordinarily work on average over a two-week period; for part-time employees with a variable schedule, leave is calculated based on the number of hours the employee was scheduled per day over the previous six-month period.
  • Leave is available for immediate use, regardless of how long the individual employee has been working for the employer.
  • Leave may be used only if the employee is unable to work (or telework) because of any of the following:
  1. Employee is subject to a federal, state, or local quarantine or isolation order related to coronavirus;
    • Note: According to a Q&A issued by the U.S. Department of Labor (Q&A no. 60), this includes “quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that cause you to be unable to work (or to telework) even though your employer has work that you could perform but for the order.”  
  2. Employee has been advised by a health care provider to self-quarantine due to concerns related to coronavirus;
    • Important note: The US Department of Labor has recently issued a long Q&A that provides additional guidance on the FFCRA.  No. 61 of the Q&A states that an employee may utilize leave on this basis if a health care provider (e.g., a licensed doctor of medicine or nurse practitioner) “advises you to stay home . . . because the health care provider believes that you may have COVID-19 or are particularly vulnerable to COVID-19, and quarantining yourself based upon that advice prevents you from working (or teleworking).”  This is a big deal for members who are directed to report regularly to sites but have health-related concerns about contracting the virus.  Members who face a heightened risk or who are especially susceptible to COVID-19 could receive up to 10 days of fully paid leave (this is one reason for leave that pays at the higher rate, up to $511/day) under the new law if a health care provider indicates that they are particularly vulnerable to COVID-19 and if quarantining themselves based upon that advice prevents the members from working. 
  3. Employee is experiencing coronavirus symptoms and seeking a medical diagnosis;
  4. Employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to coronavirus; or who has been advised by a health care provider to self-quarantine due to concerns related to coronavirus;
    • Note: There does not appear to be any particular relationship requirement for this “caring for” provision.
  5. Employee is caring for a son or daughter if a school or place of care has been closed due to coronavirus, or the childcare provider of the son or daughter is unavailable due to coronavirus;
    • Note: “Son or daughter,” as under the FMLA, includes a biological, foster, or adopted child, a stepchild, a child of a domestic partner, a legal ward, or the child of a person standing in loco parentis, under 18 years of age.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury.

Compensation amounts:

  1. For leave related to the employee’s own quarantine or illness (nos. 1-3 above), compensation is their full rate of pay, up to a maximum of $511 per day and $5,110 total.
  2. For leave related to caring for another individual (nos. 4-6 above), compensation is at two-thirds of the employee’s regular pay, with a cap of $200 per day and $2,000 total.
  • Emergency paid sick leave may be used prior to any existing paid leave.  Employers are prohibited from requiring employees to use other paid leave first, and may not modify their existing paid leave policies to avoid being subject to this requirement.  However, employees may choose to use other available accrued leave under some circumstances (for example, under the above qualifying reasons 4-6, which only pay two-thirds of an employee’s regular pay up to $200/day) in order to receive full pay.  
  • Emergency paid sick time may be used intermittently (i.e., not continuously or consecutively) if the employer agrees.  See nos. 20-22 of the U.S. Department of Labor FFCRA Q&A.
  • After the first workday in which an employee receives emergency paid sick leave, the employer may require the employee to follow reasonable notice procedures.
  • Employers cannot require, as a condition of providing emergency paid sick leave, that an employee be involved in searching for or finding a replacement worker.
  • Employees are protected from retaliation (including job loss, discipline and discrimination) for using emergency paid sick leave or filing a complaint.
  • Emergency paid sick leave does not carry over from one year to the next, and is not paid out at the termination of employment.

Public Health Emergency Leave (also known as Emergency Family and Medical Leave Expansion Act Leave, Expanded FMLA Leave, or Paid FMLA Leave):

  • This type of leave provides up to 12 weeks of partially-paid, job-protected leave to employees who are unable to work (or telework) due to a need for leave to care for a son or daughter under the age of 18 if the school or place of care has been closed, or the child’s childcare provider is unavailable, due to a public health emergency related to coronavirus (as declared by a federal, state or local authority).  This is the only qualifying reason for this type of leave.
    • Note: “Son or daughter” includes a biological, foster, or adopted child, a stepchild, a child of a domestic partner, a legal ward, or the child of a person standing in loco parentis (meaning one who is acting and intending to act as a parent, with no requirement of a legal or biological relationship), under 18 years of age.
  • Employees must only have been employed for at least 30 days to access this leave (as opposed to the 12-month employment period for FMLA).
  • At the employee’s option, the first 10 days of this leave may be taken as unpaid leave or the employee may elect to substitute any accrued vacation, personal, or sick leave (including emergency paid sick leave).  However, the employer may not require such substitution of paid leave.   
  • Leave may be taken for up to 12 weeks, the final 10 weeks of which are paid as public health emergency leave.  Ordinarily, FMLA leave is unpaid, so this is a key change.  If an employee has previously taken some FMLA leave within the 12-month period the employer uses for FMLA purposes, the amount of paid leave available under the Emergency Family and Medical Leave Expansion Act will be reduced by the amount of prior leave taken within the 12-month period.
  • After the first 10 days, leave is paid at an amount not less than two-thirds of the employee’s regular rate of pay, based on the number of hours the employee would otherwise normally be scheduled to work, capped at $200 per day and $10,000 in the aggregate.
  • For part-time workers, pay is equal to the average number of hours per day the employee was scheduled to work over the previous 6-month period.
  • Public health emergency leave may be used intermittently (i.e., not continuously or consecutively) if the employer agrees.  See nos. 20-22 of the U.S. Department of Labor FFCRA Q&A.
  • Because caring for a child whose school or place of care is closed due to coronavirus is also a qualifying reason for emergency paid sick leave, it is important to emphasize that an employee who cannot work for this reason could choose to take two weeks of emergency paid sick leave (paid at two-thirds of an employee’s regular rate of pay up to $200/day) followed by another 10 weeks of public health emergency leave (also paid at two-thirds of an employee’s regular rate of pay up to $200/day) -- all without having to use existing leave benefits.  However, such leave would not be at full pay. 
  • If the need for leave is foreseeable, the employee must provide the employer with notice of leave, as is practicable.
  • Job protection/restoration: As with the FMLA, job restoration is required.  Employees who take public health emergency leave are entitled upon return from leave to be restored to their job position or to an equivalent position with equivalent employment benefits, pay, and other terms/conditions of employment.

For more information on paid leave under the FFCRA, see the U.S. Department of Labor’s website.

Federal Response: Coronavirus Aid, Relief, and Economic Security Act (CARES Act)

The President signed the CARES Act on March 27, 2020.  Among other things, it provides for stimulus payments for individuals (up to $1,200 per individual and $500 per child), which were distributed within a couple months of the bill’s passage.  The rebates phase out at higher income levels.  The payments are based on filer status (married vs. single), income, and number of children.  A further round of stimulus payments is under consideration, possibly with lower income thresholds than the first round.

In addition, the CARES Act provides for expanded unemployment eligibility and benefits.  Ordinarily, weekly state unemployment benefits are capped at $240 and may last for up to 26 weeks.  Under the CARES Act, the federal government is funding up to another $600 in weekly benefits (up to $840 in total benefit) and extended benefits for up to another 13 weeks (for 39 weeks in total).  In addition, eligibility for unemployment is being expanded to include self-employed individuals and others who were not previously eligible for unemployment.  Note: the additional $600 in weekly benefits will expire in Arizona on July 25, 2020. 

FAQs and Advisories

In the following FAQs we provide answers to a series of frequently asked questions about the rights of school employees during the COVID-19 pandemic. We encourage you to work proactively through your local associations to address many of these issues with your school districts. This includes addressing reporting/work location issues, pay matters, safety issues, and other matters. Separate advisories on many of these topics are available through AEA on the AEA website. You should also acquaint yourself with relevant governing board policies, including GBGCB/GBGCB-E, which deal with communicable diseases (staff exclusion from school, reporting of diagnosed and suspected cases and notification, and confidentiality).
AEA Report

FAQ on School Reopening and Potential Future Closures

Frequently asked questions about school reopening and potential future closures during COVID-19.
AEA Report

FAQ on Safety and Reporting to Work at School Sites

This FAQ highlights the rights of school employees with respect to safety and particularly when having to report to school sites for work, including a discussion on leave and accommodation options, among other things.
AEA Report

FAQ on Liability Based on Exposure to COVID-19 at School

Frequently asked questions about the liability associated with exposure to COVID-19 at school.
AEA Report

FAQ on Unemployment and Resignation

Frequently asked questions related to unemployment and resignation during COVID-19.
AEA Report

FAQ on Worker and Student Safety

Frequently asked questions around safety issues impacting public school employees and students at public schools during the pandemic.

Resources

AEA Statement

Negotiations and Retirement During COVID-19

This advisory addresses local association's bargaining and negotiating contracts with districts during the pandemic. It also includes information about the impact on retirement pensions and benefits.
AEA Statement

Certified Evaluations and Pay for Performance Plans During COVID-19

The purpose of the advisory, is to ensure that the current evaluation system as described by Arizona Revised Statute (ARS) is adhered to while providing some guidance and best practices regarding details of the evaluation process.
AEA Statement

Guidance for Remote and Distance Learning

This advisory provides some examples and links to resources to assist local associations and school districts in navigating best practices remote and distance learning during the pandemic.
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Keeping the Promise of Quality Public Education

With more than 20,000 members, the Arizona Education Association (AEA) is the largest professional association for public school employees in Arizona. AEA members are teachers, community college professors, counselors, speech pathologists, bus drivers, secretaries, retired educators and student teachers and they belong to more than 150 local affiliates across Arizona.