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.
Note: Please review Background and Updates for more information on school reopening and recent executive orders.
Q: The Governor’s Executive Order 2020-51 pushed off the start of in-person classes until the governing board of each district determines it is safe to return to in-person instruction considering certain public health benchmarks. Do I have to report to my designated worksite prior to either the first day of free on-site learning (August 17) or the first day of in-person classroom instruction (as determined by the governing board), even though there may be no or few students physically present at the site, if required to do so by my district?
A: Generally speaking, yes. As the new FAQs the Department of Education noted, the executive orders only addressed the start of on-site learning and in-person student instruction, not staff training or reporting, although the Department encouraged districts to be mindful of CDC and ADHS guidelines in making decisions on staff reporting to sites. In any event, the district must still meet its obligations for ensuring employee safety under the law and governing board policies, and the district must engage with employees with disabilities regarding any requested accommodations, possibly including telework. Also, employees may be able to utilize leave under some circumstances. These topics will be discussed in greater detail in the next section.
Q: I work at a preschool that provides services to children with disabilities. Is our preschool allowed to provide in-person services?
A: Yes, as long as the developmental preschool is following CDC public health recommendations, according to ADE’s new FAQs.
Q: When will school-related athletics resume?
A: The AIA announced that school-related athletics and activities will not resume until at least August 17. It recognized that that timeline might change. Until then, all schools must operate under summer rules per the AIA handbook.
Q: My school district’s in-person start date has been pushed back due to the increasing number of cases in Arizona. Will I get paid for the days between the district’s regularly scheduled start date and the new start date (or for any days on which school buildings are closed due to coronavirus)?
A: The Governor’s Executive Orders 2020-41 and 2020-44 and actions taken by various districts to push back the in-person start dates for schools created a lot of questions, including questions about pay for educators. Some districts took the position that they would not pay employees who are not working due to the delayed reopening or closures, presumably based on budgetary, contractual, and legal concerns. The day after the Governor issued Executive Order 2020-44, AEA President Joe Thomas wrote a letter to State Superintendent of Public Instruction Kathy Hoffman addressing these pay concerns and suggesting “that ESSER funding under the CARES Act could be utilized, if necessary, to address any budgetary concerns districts may have and ensure the continuity and timely receipt of pay for educators.” On July 13, ADE issued FAQs on the recent executive orders that included a question on this topic, but did not provide much specific guidance, other than to note that there is flexibility with CARES Act ESSER funds to address staff pay during this time and that districts should communicate with educators and legal counsel on this topic. More recently, on July 23, the Governor issued Executive Order 2020-51, which addressed this issue more directly.
The answer depends in part on the rules at your district, your district’s response, and your job. You will be paid during this time if:
- You are working (work may include participating in employee orientation, training, or preparation for the new year or professional development).
- There is a policy, individual employment contract, or meet-and-confer agreement providing that you will get paid (or your pay will not be reduced) under such circumstances.
- Note: Many individual employment contracts for teachers now provide expressly for what happens when a school is not open for any reason. This may include tacking on additional days to be worked at the end of the year for no additional pay and/or reducing pay in an amount corresponding to the number of days school was not open.
- [Update]: (1) Your district has sufficient revenues to continue payments until in-person classes resume (ESSER funds may be utilized for this purpose), (2) your district’s governing board determines that such payments are necessary to preserve a properly trained, qualified and experienced workforce, and (3) you (and other employees) remain committed and available to work during your normal work hours or during periods of school building closures, whether the work is to be performed in person or remotely or whether you are given an alternative work assignment that you are qualified to perform. (This is similar to how many districts and ultimately the State Legislature continued pay during school closures in the spring of 2020.)
- You are permitted to utilize available leave benefits (e.g., emergency paid sick leave, public health emergency leave, earned paid sick leave, vacation or personal leave). These options, including paid leave options under federal law, are described in greater detail in the background section and in the next section. The right to take earned paid sick time in the event of an employee’s/family member’s illness or medical care or in the event of a public health emergency (more details below) is set forth in state statute.
- In any event, if you are an FLSA-exempt non-teaching employee, you should receive your full salary for any weeks in which you perform any work despite schools not being open, although you may have to use accrued leave benefits to the extent they are available. This rule does not apply to teachers but could apply to school nurses, administrators, some managers or directors, school psychologists or occupational therapists, speech language pathologists, some who work in the technology or business offices, and others.
Unless one of the above applies, hourly staff likely will not be paid for days schools are not open if they are not working. In the event that any staff member is not working (or working a reduced schedule) and is not being paid (or is being paid less) due to the delay in reopening schools, unemployment compensation may be available, as the section below on unemployment benefits explains. However, if the district has to add days to the school calendar in order to reach the number of required days, employees not initially compensated would be likely compensated for working on those days.
Q: If state or district officials decide to close schools at any point during this school year, is there any limit on how long my school can remain closed?
A: In a state of emergency, state officials, state or county health departments, or public school districts may close schools to protect public health and the safety of staff and students. If this happens, or if schools reopen too late, there will be a question as to whether districts have to extend the number of school days (or add further instructional hours) at a later time and whether districts have to meet testing requirements. The Governor’s latest executive order suggests that a waiver of instructional days requirements may be considered in the future at the state level due to the delayed reopening for in-person classes (and potential future closures).
