Depending on where in the nation you live, back-to-school may be just days away. In what is the most politically-charged return to classes ever for students in kindergarten through grade 12, the divisions between people, positions, and possibilities continue to grow deeper by the day.
The United States has 3.5 million teachers, all of whom are being inundated by conflicting messages as to what will happen, what should happen, and what may happen. In this piece, we will outline the murky legal landscape as best we can. For lawyers practicing education law, employment law, personal injury law, and for those whose practice cuts across these and related areas of practice, the next year is going to present a lot of opportunities to help decipher and advocate for new clients.
According to the Centers for Disease Control and Prevention, about 18 percent of all teachers are aged 55 or older - the age group that accounts for about 92 percent of deaths in the United States due to COVID-19, according to the Centers for Disease Control and Prevention. It has been argued that teachers have a higher rate of underlying medical conditions, such as asthma or diabetes, which places them at even more acute risk of becoming severely ill if they contract COVID-19.
From this foundation, at the beginning of July, the second-largest school district in the United States, the Los Angeles Unified School District, announced that they would not hold in-person classes when school begins on August 18th. Having considered the practical implications of reopening schools for 734,650 students, the LAUSD saw no clear path to open. Many pundits expected that the LAUSD announcement would pave the way for other major districts to quickly follow, but they underestimated the political and often societal pressure to reopen schools for the beginning of the academic year.
Part of the argument for reopening school is that parents need to get back to work, therefore students need to be back in school. It cannot be denied that part of the practical function of K-12 education in the United States is child care. Yet Covid-19 will not stop at the doors of schools, regardless of the reasoning for why students and teachers are back in school while the virus remains less than optimally controlled in many states.
The threshold legal question is what is the legal landscape for teachers faced with a mandatory return to in-person classes?
Two sets of standards exist - Occupational Safety and Health Administration standards and those of the Centers for Disease Control and Prevention. OSHA standards are markedly more stringent but there is again political pressure for schools to follow CDC requirements. This has been made more complex over the summer as some experts have opined that the CDC has itself become politicized and isn’t currently providing sufficiently stringent guidelines to protect teachers, staff, and students in our schools.
That aside, OSHA has published guidelines for preparing workplaces for COVID-19, which may be helpful where the school board chooses to follow these guidelines - they are currently under no legal obligation to do so. The reality is that the best protection for most teachers may be their collective bargaining agreement (CBA) if they are faced with safety issues in the workplace.
So what if schools open for the 2020-2021 academic year but teachers feel that going to the job is unsafe? Legally, where an employer is not providing a teacher a safe workplace, that teacher can request that the school board immediately does so. This request would hold more weight if done with co-workers and should be filed with the teacher’s union. In theory but perhaps not in practice here, if the school board refuses to provide a safe workplace, the teacher can petition or consider protesting to demand a safe workplace.
This is going to be a very slippery slope for teachers. Public opinion on this issue is remarkably charged and polarized with increasing top-down political pressure to create messaging that schools are safe. So from a societal perspective, it could be extremely complicated for teachers to argue that their workplace is unsafe this fall when the school board says it is.
Ultimately, many/most teachers will have some protections under their collective bargaining agreements. Teachers asserting their contractual and statutory rights cannot be punished by their employer without just cause. In normal times, a teacher voicing their concerns about safety on the job would not be considered just cause, but making predictions about what administrative bodies and courts will determine over the next year is a dangerous and uncertain game.
Teachers in the private sector are also protected under the National Labor Relations Act. Teachers who voice concerns or simply refuse to work because of a claim of unsafe working conditions are, as mentioned, also afforded some protections under the Occupational Safety and Health Act. Finally, teachers may also have protections under their applicable state law.
If they believe they are being punished for voicing concerns about an unsafe school workplace.
As these legal issues will evolve rapidly over the rest of this year, teachers should contact their union as well as an experienced lawyer specializing in employment law. Here at Berger & Lagnese, LLC, we are always available to help.
About Berger & Lagnese, LLC
The esteemed attorneys at Berger & Lagnese, LLC include Mr. Lagnese, Mr. Berger, and Mr. Paul, who each have been practicing law for nearly 30 years. They believe that the people who act negligently causing serious harm to others should be held responsible for their fatal mistakes, and seek to secure the maximum compensation for every client, in every area of medical malpractice law, no matter the difficulty of the case.
Contact Berger & Lagnese, LLC today for your free case evaluation wherein one of our experienced attorneys will assess the validity of your medical malpractice claim, and will gladly discuss every detail of your case to inform you of your legal rights and options.
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