As a former teacher myself who now is a lawyer, I’ve represented countless teachers over the years in various actions against school districts. We’ve received several phone calls over the past several weeks from teachers in Colorado and the Denver metro area who are concerned about returning to work amid the covid-19 pandemic. This issue hits particularly close to home for me because my wife is a special education teacher who fell ill with coronavirus in March. Although she is now testing negative for covid, she still has not fully recovered. She continues to struggle with breathing and gets fatigued very, very easily. She’s only 41 years old and was in good health before this happened. Teachers are scared about returning to school soon, and unfortunately they have good reason to be. For that reason, I’ve tried to put together this guide to help teachers who have questions about covid.
- If I am healthy and my school tells me I have to return to work, do I have to?
In general, yes. If the schools open and you are still employed, you do typically have to return to work.
- What happens if I do not?
If you are otherwise healthy and you do not return to work, you could be fired for insubordination and/or job abandonment.
- May I sue my school if I get sick from covid?
For various reasons that are too technical and complicated to get into here, the answer generally is no. In Colorado, such a suit would be just about impossible for all intents and purposes.
- Do special protections apply to me if I have pre-existing health conditions?
Absolutely. This is where you have to put the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 on your side. The ADA, a federal law found at 42 U.S.C. § 12101, protects Americans with Disabilities. If you are a teacher with pre-existing health conditions, you may be entitled to special protections under the ADA.
- How do I know if the ADA protects me?
The ADA protects every individual with a disability. A person is considered to have a disability if that person has a physical or mental impairment that substantially limits one or more major life activities, according to 42 U.S.C. § 12102(1)(A). Generally, there must be a record of that disability. That means you simply need medical documentation of that disability.
- What kind of disabilities qualify?
The ADA should be read very broadly. Basically, if you have any kind of physical and/or mental issue that substantially limits you, then you should assume you qualify. This could be cancer, heart disease, asthma, allergies, kidney illnesses, depression, post-traumatic stress disorder (PTSD), anxiety, etc.
- What is a major life activity?
Again, the ADA should be read very broadly. As an educator, you’re constantly involved in major life activities: walking, talking, thinking, breathing, writing, etc. All of these things are major life activities.
- I’m not teacher, but I still work in a school. Does the ADA protect me?
Absolutely. Perhaps you’re a paraprofessional, nurse, psychologist, administrator, social worker, janitor, etc. The ADA still protects you.
- I have a disability and fear returning to work because of covid-19 and my disability. What do I do now?
First, make sure you have your documentation in order. You have to have proof from a medical provider that you do, in fact, have a disability.
Second, if you can get your medical provider to make a recommendation that it is not safe for you to return to work because of your disability, that would be very helpful. This is not required, but it can be very useful.
Third, and this is most important, make a request for what’s known as a “reasonable accommodation.” This is a very important term under the ADA, and it is found at 42 U.S.C. 12111(9). An employer has to make reasonable accommodations for disabled individuals. What this means is that your school must make “existing facilities used by employees readily accessible to and usable by individuals with disabilities.” Reasonable accommodations can include but are not limited to: modified work schedules, modifying devices (such as putting plexiglass behind teachers’ desks), allowing teachers to work from home, etc. As long as the accommodation does not present an “undue hardship” to the school, then the accommodation is considered reasonable. You have to make the request to your supervisor.
- Is it reasonable for me to work at home?
I would argue that if you are disabled, it absolutely is. For the past several months, schools have put into place numerous adjustments that allowed teachers to teach students from home. There is no reason that they should not be able to continue those adjustments.
- Does the ADA only apply to public schools?
No, it applies to public schools and private schools. As long as you work for a school or district that has at least 15 employees, the ADA protects you. However, the ADA does not apply to private religious schools, and you would not be protected if you work for a private religious school.
- I made a request to work from home or another reasonable accommodation, but the school is denying me. What do I do?
File a complaint with either the Colorado Civil Rights Division (ccrd.colorado.gov)
or the U.S. Equal Employment Opportunity Commission (eeoc.gov). Sometimes, this is the only language that school leaders understand.
- But I only have a minor medical condition. The ADA won’t protect me, right?
You don’t know that, and you don’t know how returning to a dangerous, covid-infected school is going to affect you. If you have mental health issues, for example, the stressors may make things much worse. If you have asthma, for example, that could be severely impacted by covid. Let doctors make medical decisions. If you’re not comfortable returning to work, see your doctor and make decisions in consultation with your doctor.
- Will my school union help me?
LOL – is that a serious question? You’re far from the only one. Have you seen the state of unions in America?
- I filed a complaint and they still won’t accommodate me or they’re threatening me with my job.
You are educators. As a group, you are the best people on Earth, and you do the world’s most important job while not being paid nearly enough to do it. The public does not appreciate you enough, your supervisors disrespect you, parents often blame you for everything, you work damn hard, and you do it all for the kids. You have to put up with a lot of crap to do a damn hard job while being underpaid and disrespected. Stop putting up with that crap. Lawyers exist for a reason.
- Why is my school district doing this to me?
Because no matter what they may say, district leadership doesn’t care about you. They consider you expendable and replaceable. Remember this behavior by the district the next time the union negotiates a contract with district leadership.