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).
Disclaimer: What follows is general information on employee rights in the context of the COVID-19 outbreak in Arizona. Employee rights and responsibilities may vary in some respects from district to district and from position to position. For example, individual employment contracts, meet-and-confer agreements, and governing board policies and regulations may differ in significant ways by district and by employee classification. This AEA Legal Department publication is for informational purposes and is not intended as a substitute for legal or other professional advice based on or addressing one’s specific circumstances.
Q: With the increase in cases of COVID-19, do I have a right to stay home and not to report to the work site as requested by my district? If I don’t have that right, what options do I have?
A: Generally speaking, if your district asks you to report to the work site, you don’t have a legal right to decline that request. However, you may be able to avoid reporting directly to a worksite as requested (1) if you are an individual with a disability and working remotely is a reasonable accommodation (and not an undue burden for your employer) or (2) if you take appropriate approved leave (paid or unpaid).
Q: What paid leave options are there?
A: You may be able to you utilize paid leave in the event you are unavailable for work for any of several reasons, including:
- Emergency paid sick leave under federal law (qualifying reasons, eligibility, and other terms explained in Part I above) on or after April 1;
- Public health emergency leave (also known as paid or expanded FMLA leave) under federal law (qualifying reason, eligibility, and other terms explained in Part I above) on or after April 1;
- Earned paid sick time under state law in the event of an employee’s/family member’s illness or medical care or in the event of a public health emergency. Note: Under the earned paid sick time law, a district must allow you to utilize accrued sick time in order to receive pay for, among other things, (1) time used to seek medical care or for illness of the employee or the employee’s family member (an employer may not ask for a doctor’s note until the third consecutive day) or (2) under certain circumstances during a public health emergency. Specifically, an employee may use sick time during a public health emergency in the event of the "Closure of the employee's place of business by order of a public official due to a public health emergency or an employee's need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for oneself or a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee's or family member's presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease." [See A.R.S. § 23-373(A)(3) (emphasis added; note the use of the disjunctive conjunction “or”).]
- Other accrued available leave (e.g., personal leave or vacation).
Q: And unpaid leave options?
A: You may also be able to take traditional (unpaid), job-protected leave under the Family and Medical Leave Act (up to twelve weeks for an employee’s own serious health condition or to care for another with a serious health condition), leave for up to one year under your district’s governing board policy GCCC, or leave as a reasonable accommodation for a staff member with a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (such leave cannot be indefinite).
Q: And I could possibly continue working and not have to take leave if I can get a suitable accommodation from my employer?
A: Yes, if you are a person with a disability, you may also be able to request an accommodation, such as telework (or remote work), under the ADA and Rehabilitation Act in order to remain working throughout while avoiding direct contact with others and the concomitant increased risk of exposure and severe complications. Most of the underlying medical conditions that increase your risk of getting COVID-19 or becoming seriously ill if you get it (see the list and link in Part I (Background and Updates)), such as diabetes, serious heart conditions, or a compromised immune system (from any of several causes), are generally considered disabilities under the ADA and the Rehabilitation Act. In addition to telework, other potential accommodations may include any of several measures aimed at reducing contact with others and potential transmission, including the use of PPE, the installation of plexiglas or other physical barriers, modifying shifts/staggering, additional cleaning of surfaces, and transferring to a vacant position that involves less contact with others. However, it should be noted that many of these potential accommodations might be provided inconsistently and might not be as effective at reducing the risk of transmission as telework would be, in any event. We also know that school districts successfully offered telework opportunities to staff during the spring school closures, albeit under slightly different circumstances. You may also be able to request a reasonable accommodation if you have a mental health condition, such as an anxiety disorder or post-traumatic stress disorder, that makes it more difficult to cope with the stress and disruption caused by the pandemic.
Q: What if none of these options works for me in my situation and I’m not willing to return to school if they ask me to report in person while the pandemic continues?
A: If none of these options is available, resignation (and potentially unemployment) or retirement would be other possibilities, as explained in the final section of the FAQ.
Q: Okay. Could you please tell me more about accommodations and how I could go about getting one?
A: Sure. Under the ADA, an accommodation is simply a modification or adjustment to a job or work environment that will enable an employee with a disability to continue to perform the essential functions of his or her job and enjoy the equal benefits and privileges of employment. The ADA requires that employers provide reasonable accommodations to qualified individuals with a disability unless doing so would pose an undue hardship for the employer, meaning it would entail substantial difficulty or expense. Whether an accommodation presents an undue hardship is determined on a case-by-case basis and considers the accommodation in relation to the employer’s overall size, resources, and operations, among other things. An employer may not ordinarily refuse a requested accommodation simply because it would involve some cost. Potential accommodations for a wide range of disabilities may be found at www.askjan.org.
A request by the employee for an accommodation need not include any magic words (e.g., “reasonable accommodation” or “ADA”) or even be in writing, although it is a good idea to make the request in writing. To get started, you simply have to inform your employer that you have a condition and that you would like to see a change in your job or work environment to meet a need (or needs) associated with the condition and to enable you to continue to do your job. While not technically required, especially in the beginning of the process, you are strongly advised to get a letter from your doctor upfront identifying the condition for which you are seeking an accommodation, how the condition affects you (limitations), and the accommodation(s) requested. This will facilitate the process and save time later. The request for an accommodation by a person with a disability triggers the employer’s duty to engage in the “interactive process” with the employee making the request. During this process, additional information may be exchanged related to the condition or impairment at issue and the requested accommodation, and various options for meeting the employee’s needs may be explored. The employee must generally provide medical documentation related to the condition or impairment at issue if the employer requests it. The employer does not have to agree to the specific accommodation requested by the employee so long as the accommodation ultimately selected is effective at meeting the identified need related to the disability. In fact, rejecting an effective accommodation offered by the employer puts the employee at risk of losing protection under the ADA, given that the employee needs the accommodation in order to be able to perform the essential functions of the job (and thus to be qualified to remain in the job).
Q: I saw pregnancy on the CDC’s list of conditions that might put people at an increased risk of complications from COVID-19. Is pregnancy considered a disability under the ADA that must be accommodated?
A: A normal pregnancy alone is not considered a disability under the ADA. However, pregnancy-related conditions and complications (such as gestational diabetes) may be covered disabilities giving rise to an entitlement for an accommodation under the ADA. Also, the Pregnancy Discrimination Act, which amends Title VII of the Civil Rights Act, requires that women affected by pregnancy, childbirth, or related conditions be treated the same as others who are similar in their ability or inability to work, meaning that anyone who is pregnant may be entitled to job modifications (such as telework), changes to work schedules or assignments, and leave to the same extent provided to other employees who are similar in their ability or inability to work.
Q: May I get an accommodation under the ADA if I’m 65 or over and thus at a higher risk?
A: The district may accommodate you on that basis, but not as a legal requirement under the ADA (unless there is a disability involved as well). The ADA protects individuals with disabilities from discrimination and retaliation and provides them with reasonable accommodations. It doesn’t provide for accommodations based specifically on age. However, that doesn’t mean your employer couldn’t allow additional flexibility or special consideration in making staffing decisions and determining assignments, etc., to those who are at risk of serious illness from COVID-19 based on age if such employees request an accommodation.
Q: I am very concerned about getting the coronavirus when I report to work. What obligation or incentive does my employer have to protect me and other staff from COVID-19?
A: Your employer has a statutory duty to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to . . . employees.” See A.R.S. § 23-403(A). While we do not have perfect clarity as to the application of this duty in the context of the COVID-19 pandemic, it is generally expected, even if not clearly required, that districts will follow CDC guidelines and will provide any necessary and appropriate PPE (personal protective equipment), especially where the community spread is extensive and where mandated by state or local government (e.g., face masks) or recommended by the CDC. In addition, district policies and regulations, such as CCB-R and GBGCB, likewise require the district to safeguard the health of employees and to take reasonable and lawful measures to protect staff members from the transmission of communicable diseases. In addition, districts have financial incentives to avoid work-related injuries, attendance issues, and claims for damages potentially resulting from the spread of infectious diseases at school (see below for a discussion of liability issues related to COVID-19). It is also the right thing to do.
We fully understand why many educators are concerned about returning to work under current circumstances. That said, if you are feeling an overwhelming sense of unease, stress, or anxiety about the COVID-19 pandemic and would like to speak with someone, your district may offer an Employee Assistance Program (EAP) that would allow you to speak with a professional who can assist you.
Q: What can I do if I observe or am aware of conditions at my workplace that pose a significant risk of serious physical harm or death from COVID-19?
A: If you are aware of any circumstances that suggest your workplace is not safe, you should report any such concerns to your site administrators or human resources department. For example, if your school has had a suspected or confirmed case of COVID-19 and your district is not complying with CDC recommendations for environmental cleaning and disinfection, you should report your concerns immediately. It is advisable to submit the concerns both verbally and in writing. We strongly recommend that you ask your local association representative to accompany you as you raise these concerns. If the district does not address any recognized hazards, you may also consider filing a grievance internally (citing the above governing board policies regarding health and safety, among other things) as well as submitting this form to the Arizona Department of Occupational Safety and Health. Importantly, an employer may not discharge or otherwise discriminate (i.e., retaliate) against an employee for lodging a complaint about workplace safety concerns with the employer or for providing notice of dangerous conditions to ADOSH and requesting an investigation (by using the form). In addition, you may have some First Amendment-based protections when you are speaking about student and staff safety concerns and are not doing so as a part of your work duties or generally in the course of official school business. If you believe that you have been disciplined or otherwise retaliated against for engaging in protected speech outside of your duties or course of work, please speak with your local association representative or AEA Organizational Consultant.
In addition, there is a limited right to refuse to expose oneself to a dangerous condition in the workplace. An employer may not discharge or otherwise discriminate against an employee for engaging in such protected activity. According to A.A.C. R20-5-680(E):
E. If the employee, with no reasonable alternative, refuses in good faith to expose himself to a dangerous condition, the employee is engaged in protected activity. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the dangers through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer and been unable to obtain a correction of the dangerous condition.
An employee who refuses in good faith to expose herself to COVID-19 must apprehend (or anticipate, especially with anxiety or fear) death or injury resulting from the condition, must be relying upon a reasonable fear based on objective evidence, must have no time to contact ADOSH, and must generally make an effort to seek resolution from her employer. If there is a reasonable alternative to refusing to work under the circumstances or a ready means of reducing or eliminating a risk (for example, using any necessary and appropriate PPE that is supplied or made available to the employee), the right to refuse is likely unavailable. If fired, the employee only has 30 days to file a complaint with ADOSH. There is no private right of action under A.R.S. § 23-425. Instead, the Industrial Commission must handle this employee’s case.
Q: I have a condition that leaves me especially vulnerable to infection. What leave options, if any, do I have and what obligations does my employer have to me under these circumstances?
A: If your health care provider advises you to stay at home because you are particularly vulnerable to COVID-19 and if quarantining yourself based on that advice makes you unable to work (or telework), you are eligible to take up to 80 hours of emergency paid sick leave under the FFCRA (see Part I (Background and Updates) above). This would apply, for example, if you are asked to regularly report to a site during the pandemic but are not able to work onsite due to your health care provider’s advice that you are particularly vulnerable to COVID-19 and should therefore stay at home for a period of time. Other paid and unpaid leave options may also be available, as outlined above, including unpaid leave under governing board policy GCCC.
If you are a person with a disability and plan to continue working throughout this time, you may be entitled to receive a reasonable accommodation from your employer as long as you can still perform the essential functions of the job. Ideally, you should obtain a statement from your healthcare provider explaining any underlying medical condition you have that puts you at increased risk of serious illness from COVID-19 (or any other condition that impairs your ability to perform your work absent an accommodation in the context of the pandemic) and identifying desired accommodations that would meet your needs, such as working remotely. Many districts are requesting that employees with disabilities who are seeking accommodations submit any requests for accommodation well in advance of returning to school so that such requests may be considered in planning and staffing for the coming year.
Also, under governing board policy GBGCB, your district usually has a duty to inform staff members who are known to have special vulnerability to an infection if an outbreak of a communicable disease occurs at school.
Finally, as explained further below, under Executive Order 2020-11, an individual who meets eligibility requirements based on work history, earnings, and residency, may apply and be approved for unemployment insurance under the following circumstances, among others:
Individuals who, due to the requirements that the individual be quarantined, are not able to work and do not have available paid leave, even if the individual has an expectation of returning to work after the quarantine is over;
Individuals that leave employment due to risk of exposure or infection or to care for a family member who has been infected with COVID-19; or
Individuals that for any other scenario are separated from work for reasons related to COVID-19, if the Arizona Department of Economic Security determines that such scenario is consistent with the guidance issued by the US Department of Labor for Unemployment Compensation for Individuals Affected by the Coronavirus Disease 2019.
Please confirm that this executive order still remains in effect before taking any action in reliance on the order.
Q: If I plan to request emergency paid sick leave in order to stay home because I’m particularly vulnerable to COVID-19, what should I submit to the district?
A: The district will likely ask you to state your name, the date(s) of leave, the reason for leave, and a statement that you are unable to work because of this reason. The district may also ask for the name of the health care advisor who gave you advice in this regard. While it might not be strictly required, a note from the health care advisor concerned may be helpful.
Q: Okay. May I use sick leave if I have to stay at home with my child because my child’s school is closed due to the COVID-19 outbreak?
A: You may use, under federal law, emergency paid sick leave and/or public health emergency leave and, under state law, earned paid sick time to care for a child whose school or place of care has been closed due to the coronavirus. Paid leave for caring for a child whose school is closed under federal law is limited to two-thirds of an employee’s regular rate of pay up to $200 per day. These paid leave benefits could be stacked (likely taking the federal benefits first) or used as near substitutes for one another (for example, you may choose to utilize earned paid sick time under state law to receive your full, regular pay rather than utilizing federal paid leave options).
Q: If I plan to request emergency paid sick leave and/or public health emergency leave in order to stay home with my child, what should I submit to the district?
A: The district will likely ask you to state your name, the date(s) of leave, the reason for leave, and a statement that you are unable to work because of this reason. The district may also ask for the name of the child being cared for, the name of the school, place of care, or child care provider that has closed or become unavailable, and a statement from the employee that no other suitable person is available to care for the child.
Q: Is my employer legally permitted to ask me questions about any symptoms I may have or to take my temperature at school to see if I have a fever?
A: While it is not entirely clear if having COVID-19 constitutes a disability under the ADA, some practitioners are assuming it is at the present time. Even assuming it is, however, employers are still generally permitted to ask disability-related questions for any employees reporting to work sites or interacting with other staff or students in the course of working, including asking you if you have recently tested positive for COVID-19, if you are experiencing specific symptoms of COVID-19, or if you had close contact with someone diagnosed with COVID-19 recently, in order to protect others at work. In the context of a pandemic, taking an employee’s temperature at work is also generally permitted to see if you may have a fever, as the EEOC noted. However, it is important to remember that one with COVID-19 might not have a fever (or any symptoms at all), so taking temperatures may be an ineffective (yet a resource- and time-consuming) measure. The employer must generally keep the exam and results confidential.
Q: Under what circumstances is my employer able to send me home from school, and can my employer keep me away from school for a while?
A: Your employer may send you home or keep you away from school if you have tested positive for COVID-19, if you exhibit symptoms of COVID-19, if you recently came into close contact with someone who had COVID-19, or if you otherwise present a direct threat to the health and safety of others in the school workplace based on directives and recommendations from the CDC, ADHS, and county health officials and the best available medical knowledge. The CDC’s current recommendations on ending isolation (also recommended by ADHS) after a suspected or confirmed COVID-19 case is identified are based on symptoms, time, or testing (see also here). Under existing board policies, a district may require a staff member who is excluded from school due to a communicable disease to be assessed by a school nurse or a designee or to submit a physician’s written medical release prior to returning to work. Under these circumstances, you could use sick leave and other paid leave to receive pay while you are away from work. If you are symptom-free and/or otherwise able to work from home in light of your job assignment, you may even be able to work during some or all of your time away from the worksite rather than taking time off.
Q: What should I do if one of my students exposes me to COVID-19?
A: Report the exposure to the administration and consult with your health care provider immediately. Your provider may determine that you should be tested for COVID-19. Also, your district may require that you self-isolate for a period of time if you had close contact with someone with COVID-19 based on CDC recommendations.
Q: What should I do if I end up getting COVID-19?
A: You should stay home and seek medical care as needed. You should only return to work in accordance with district policies and the recommendations of public health officials (see above). While off work, you can utilize paid sick leave under federal or state law and potentially other benefits. If you need extended leave, you may be able to apply for leave under the Family Medical and Leave Act (FMLA). If your provider says you cannot perform your job for a period of time, and you have short term disability insurance, you should apply for those benefits. Finally, if you end up getting COVID-19 and can prove that exposure occurred through your work activities, you may be able to file a workers’ compensation claim as well. Note: you may file a workers’ compensation claim OR file for short term disability. Most STD policies exclude work injuries.
We would encourage you to report if you are diagnosed with COVID-19 to your supervisor, human resources, and/or district administration for several reasons, including out of concern for others at school who may have been exposed. You also must notify your employer of the infection if you plan to file a workers’ compensation claim. It may also come up in the context of applying for emergency paid sick leave under the FFCRA.
Q: What will my school district tell others about me if I end up getting COVID-19?
A: School districts must generally maintain the confidentiality of staff members’ medical conditions, including the identity of a staff member who has a communicable disease and the nature of the disease. However, districts may have to disclose some information under specific circumstances. Among other things, a district may have to report diagnosed or suspected cases of a communicable disease to public health officials (the reporting requirement set forth in the regulations does not currently include COVID-19) or disclose the existence of a diagnosed or suspected case of COVID-19 to staff members or students to enable them to protect themselves from any direct threat to their health and safety.
Q: What can I do if I observe or am aware of conditions at my workplace that pose a significant risk of serious physical harm or death from COVID-19?
A: If you are aware of any circumstances that suggest your workplace is not safe, you should report any such concerns to your site administrators or human resources department. For example, if your school has had a suspected or confirmed case of COVID-19 and your district is not complying with CDC recommendations for environmental cleaning and disinfection, you should report your concerns immediately. It is advisable to submit the concerns both verbally and in writing. We strongly recommend that you ask your local association representative to accompany you as you raise these concerns. If the district does not address any recognized hazards, you may also consider filing a grievance internally (citing the above governing board policies regarding health and safety, among other things) as well as submitting this form to the Arizona Department of Occupational Safety and Health. Importantly, an employer may not discharge or otherwise discriminate (i.e., retaliate) against an employee for lodging a complaint about workplace safety concerns with the employer or for providing notice of dangerous conditions to ADOSH and requesting an investigation (by using the form). In addition, you may have some First Amendment-based protections when you are speaking about student and staff safety concerns and are not doing so as a part of your work duties or in the course of official school business. If you believe that you have been disciplined or otherwise retaliated against for engaging in protected speech outside of your duties or course of work, please speak with your local association representative or AEA Organizational Consultant.
In addition, there is a limited right to refuse to expose oneself to a dangerous condition in the workplace. An employer may not discharge or otherwise discriminate against an employee for engaging in such protected activity. According to A.A.C. R20-5-680(E):
E. If the employee, with no reasonable alternative, refuses in good faith to expose himself to a dangerous condition, the employee is engaged in protected activity. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the dangers through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer and been unable to obtain a correction of the dangerous condition.
An employee who refuses in good faith to expose herself to COVID-19 must apprehend (or anticipate, especially with fear or dread) death or injury resulting from the condition, must be relying upon a reasonable fear based on objective evidence, must have no time to contact ADOSH, and must generally make an effort to seek resolution from her employer. If there is a reasonable alternative to refusing to work under the circumstances or a ready means of reducing or eliminating a risk (for example, using any necessary and appropriate PPE that is supplied or made available to the employee), the right to refuse is likely unavailable. If fired, the employee only has 30 days to file a complaint with ADOSH. There is no private right of action under A.R.S. § 23-425. Instead, the Industrial Commission must handle this employee’s case.
