The COVID-19 pandemic has reminded us how invaluable our teachers are. Educators continue to teach our children under very difficult circumstances and provide them with much needed emotional support and guidance.
McOmber McOmber & Luber P.C. thanks all our teachers for their incredible work and sacrifice. They are on the front lines of this pandemic and are going beyond the call of duty to ensure our children receive a quality education. If you are an educator, we want you to have all the information you need to stay safe in your schools and know that there are laws in place to make sure your interests are protected.
Required School Safety Measures
Staff, students, and visitors are required to wear face coverings indoors pursuant to Governor Murphy’s Executive Order 251. There are limited exceptions such as when students are in physical education classes or outdoors.
School districts are also encouraged to implement other important safety measures to keep students and staff safe including:
- Maintaining at least 3 feet of distance within classrooms.
- Cohorting students if possible.
- Routine sanitation of classrooms, lunchrooms, gymnasiums, restrooms, hallways, and high touch areas.
- Regular handwashing for students.
- Student and staff health screenings.
- Proper ventilation.
School districts must also have plans in place for when students or staff experience COVID-19 symptoms and when students or staff test positive for COVID-19. Schools are required to report weekly student and staff case counts to the New Jersey Department of Health.
Workers Compensation and Temporary Disability Insurance
If you are directed to quarantine due to COVID-19 following a known exposure during the course of your work, you could be eligible for workers compensation. You may also be eligible for up to 26 weeks of Temporary Disability Insurance (TDI) benefits depending upon your school district. Your healthcare provider would have to certify you are unable to work because you are at high risk for COVID-19 due to an underlying health condition.
Paid Leave For a COVID-19 Reason
Last March, Congress passed the Families First Coronavirus Response Act (FFCRA), to provide emergency paid leave for families effect by the COVID-19 pandemic. Under FFCRA (due to expire on December 31, 2020), you may be entitled to up to 10 days (80 hours) of paid sick leave at 100% your rate of pay ($511 daily or $5,110 total) if the following applies:
- You are experiencing COVID-19 symptoms and are seeking a medical diagnosis;
- You have been advised by a health provider to self-quarantine related to COVID-19;
- You are subject to a federal, state or local quarantine or isolation order due to COVID-19.
If you are caring for someone due to a COVID-19 reason, you may be entitled to up to 10 days (80 hours) of paid sick leave at 2/3 your rate of pay ($200 daily or $2,000 total) if the following applies:
- You are caring for an individual who is subject to a government isolation order due to COVID-19;
- You are caring for someone who has been advised by a health provider to self-quarantine.
If you are caring for a child whose school or place of care is closed due to COVID-19, you may be entitled to up to 12 weeks of paid leave AND expanded leave at 2/3 your rate of pay pursuant to the Emergency Family and Medical Leave Expansion Act ($200 daily and $12,000 total).
Can I Teach from Home If I am High–Risk?
Maybe. Under the Americans With Disabilities Act (ADA), if you have a health condition and are concerned about your exposure, you can request a “reasonable accommodation” from your employer. Once you make your request, your employer is required to engage in an interactive process which is a discussion of how to best accommodate your medical condition. Examples of such accommodation could be additional PPE, moving the location of where you work, erecting a barrier separating you from others, etc. Your employer can request medical documentation of your disability.
If your employer determines that your accommodation would create “undue hardship,” or that you could not perform the essential functions of your job, they can deny your request. For example, if you are a teacher and your school is fully remote, a teleworking option may be reasonable. However, if your school is in-person, it is unlikely that a school would find that you are able to perform the essential functions of your job from home.
Can I Receive an Accommodation If I Live with A High-Risk Individual?
No. If you live in a household with someone who is immunocompromised, your employer is not legally obligated to provide you an accommodation, such as working from home. Although the ADA prohibits discrimination based on an association with someone with a disability, the EEOC has stated that “an employee without a disability is not entitled to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.” EEOC Technical Assistance Questions and Answers, D. 13, June 11, 2020.
It is possible you could qualify for leave under the Family and Medical Leave Act (FMLA) to care for a family member or under FFCRA which may entitle you to leave if a family member is subject to a quarantine order or for other COVID-19 related reason.
If I am Pregnant, Can I Receive A Medical Accommodation?
Not necessarily. Under the ADA and New Jersey Law Against Discrimination (LAD), pregnancy is not considered a qualifying disability, but a pregnancy-related medical condition may. In addition, the federal Pregnancy Discrimination Act requires that women who are pregnant or have a pregnancy-related medical condition be treated the same as others who are similar in their ability or inability to work.
If I Was Exposed to COVID-19 At School, What Should I Do?
Pursuant to current CDC guidelines, if you were exposed to someone who tests positive for COVID-19, you should quarantine up to 14 days. However, if you are exhibiting no symptoms of infection, CDC states that you can cut that down to 10 days. If your school is in-person, you should discuss with your employer if you can teach remotely. If you are unable to teach remotely, and are subject to a quarantine, you are eligible for emergency paid sick leave under FFCRA. After that is exhausted, you can use accrued sick leave under N.J.S.A. 18A:30-1.
Can I be Terminated Because I Have COVID-19?
No. The New Jersey Department of Law and Public Safety has stated that any “physical infirmity caused by COVID-19” would qualify as a disability under the New Jersey Law Against Discrimination (LAD). This means your employer is legally prohibited from discriminating or retaliating against you because of your condition caused by COVID-19. The Equal Employment Opportunity Commission (EEOC) has also stated that “long COVID” may be a disability under the Americans with Disabilities Act (ADA).
Reporting Health and Safety Violations
School districts are doing their best to comply with the ever-changing guidance from federal and state agencies to keep teachers and students safe. However, there may be some schools or districts that are not following the Governor’s Executive Order and DOH guidance. In this case, you can file a complaint with the New Jersey Division of Public Safety and Occupational Health and Safety (PSOHS), the New Jersey Department of Health or the New Jersey Department of Labor.
Can My School Retaliate Against Me for Raising Safety Issues?
No. New Jersey’s Conscientious Employee Protection Act (CEPA) prohibits an employer from taking retaliatory action against an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of the employer…that the employee reasonably believes…is in violation of a law, or a rule or regulation…or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare.” N.J.S.A. § 34:19-1 et. seq. If you believe your employer is retaliating against you for raising workplace safety concerns, you can file a complaint with the Occupational Safety and Health Administration (OSHA).
Governor Murphy’s Executive Order 264 requires COVID-19 vaccinations for all part-time and full-time individuals employed by all public, private, and parochial preschool programs, and elementary and secondary schools, including charter and renaissance schools. If a teacher chooses not to be vaccinated, he or she is required to submit to weekly COVID-19 testing. Covered individuals include:
- Educational support professionals
- Individuals providing food, custodial and administrative support services
- Substitute teachers, whether employees directly by a school or otherwise contracted
- Contractors,providers,and any other individuals performing work in a school whose job duties require them to make regular visits, including volunteers.
If I Was Exposed to COVID-19 At School, What Should I Do?
Your course of action depends on whether or not you are vaccinated. If you are vaccinated and you are not showing any COVID symptoms, you do not need to quarantine or be excluded from school. However, the New Jersey Department of Health (NJDOH) recommends you get tested and continue to monitor for COVID symptoms for 14 days following exposure.
If you are NOT vaccinated and you have been exposed, the NJDOH recommends that you be excluded from school for 14 days from the date of last contact. If this is the case, you may want to discuss with your school if you can teach remotely. Check with your school district if workers’ compensation or temporary disability insurance is available to you.
While COVID-19 “fatigue” has undoubtedly settled in, employers must continue to make sure their employees remain safe. Schools are no exception. McOmber McOmber & Luber P.C.’s experienced lawyers are here to provide you with the information you need to stay protected during this difficult time. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-878-9040 to find out more.