The unprecedented COVID-19 (Coronavirus) outbreak has unsettled the entire nation, demanding immediate adjustments to limit the transmission of the virus. Throughout our country, public schools closed to limit social interactions with others and slow the spread of COVID-19. Consequently, employers now face unique challenges. In school districts, important concerns revolve around the implementation of the Families First Coronavirus Response Act and whether classified employees should be paid during government mandated closures.

Special Provision(s)- H.R.6201- Families First Coronavirus Response Act

On March 18, 2020, the U.S. Senate passed H.R.6201, the Families First Coronavirus Response Act (Act), to assist with the COVID-19 crisis. This Act addresses immediate public health related matters and impacts employers. Specifically, the Act addresses paid family medical leave, paid sick leave, and unemployment insurance. The provisions will go into effect on April 2, 2020, and will expire on December 31, 2020.

Paid Family Medical Leave – The bill provides for 12 weeks of job-protected paid Family and Medical Leave Act (FMLA) leave; the first 10 days may be unpaid. Furthermore, employees may use accrued personal or sick leave during the first 10 days, but employers may not require employees to do so. Following the first 10 days, employers must compensate employees in an amount that is not less than two-thirds of the employee's regular rate of pay up to $200 per day or $10,000 in the aggregate. However, these pay requirements apply to only the COVID-19-related triggering events allowing the employee to: self-quarantine, seek preventive care or a diagnosis, or receive treatment for COVID-19, care for a family member or a child whose school or childcare provider is closed due to COVID-19. This leave benefit covers employees who have been working for at least 30 calendar days and applies to any private sector employers under 500 employees.

Paid Sick Leave – Regarding paid sick leave, the Act states that employers with fewer than 500 employees will be required to provide full-time employees 2 weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19. Alternatively, part-time employees are entitled to the number of hours of paid sick time equal to the average number of hours they work over a 2-week period. Employers are required to compensate employees for any paid sick time they take at their regular rates of pay and to post a notice informing employees of their rights to leave. Furthermore, the Act does not preempt existing state or local paid sick leave entitlements.

Unemployment Insurance – The Act provides for $1 billion in emergency unemployment insurance (UI) relief to the states. $500 million will be allocated towards costs associated with increased administration of each state's UI program and $500 million will be held in reserve to assist states with a 10 percent increase in unemployment. Additionally, to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.  South Carolina is currently expected to see a surge in unemployment claims resulting from COVID-19; employers may apply for benefits for their released employees to ensure they receive compensation.  Employers will not be fiscally penalized for the rise of unemployment claims related to COVID-19.

Current Trends – Pay for Classified Staff

The majority of school districts appear to limit the adverse effects of COVID-19 by continuing to pay their employees. However, while school districts agree on paying employees, the reach of who will be paid greatly varies. An array of considerations must be weighed in making this decision including budget constraints, morale, and legal requirements. Among these considerations, the financial impact prevails. For now, many school districts have funding, which was previously budgeted, to pay all employees. Nonetheless, frustration stems from the subsequent understanding that school districts will see their finances strained if schools, for instance, make-up for lost time during the summer, resulting in the necessity of continued employment for staff members.

School districts around the country have taken different approaches to resolving the financial doubts surrounding staffing concerns. Certain districts will continue to pay all staff, including substitutes and seasonal workers, who will be paid based on the average number of hours they worked daily in the months before the closures. However, other districts' plans for substitutes and seasonal workers are not as clear. For example, in New York City, teachers, paraprofessionals, and long-term substitutes will continue to teach students remotely and receive pay for throughout the upcoming weeks. However, daily substitutes will not be paid unless they work in-person at regional emergency childcare centers. In Nevada, a superintendent shared plans to pay contracted employees but has not decided about staff who are typically paid only when school is in session. Finally, several school districts have even gone as far as ensuring that all, or most, staff can continue to expect paychecks.

What's Next?

COVID-19 presents unforeseen circumstances that will challenge our nation to respond timely and appropriately. Consequently, school districts are forced to make significant decisions, including navigating the new legislation and paying their employees. As the situation unfolds, many more decisions will need to be made, and both short-term and long-term effects should be acknowledged. This is the time to communicate with fellow board members, superintendents, and state and federal departments of education to meet the needs of our communities.

We are receiving a number of questions about working remotely and teachers' responsibilities during that time, so that topic will be the subject of our next Legal Alert.  White & Story will continue to monitor changes in legislation and other issues related to the virus pandemic and operate to serve our clients.