On January 21, 2021 President Biden issued an Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers. And on February 5, Governor Northam called on Virginia schools to make in-person learning possible for students by March 15, 2021.
While the final decision on whether to physically reopen schools remains up to the local school boards, there is pressure on Virginia school teachers and administrators to get back to the classroom. But the problem is that there is still a coronavirus pandemic going on.
The Virginia Department of Health recently released Revised Interim Guidance for Reopening PreK-12 Schools, which is based on the Centers for Disease Control and Prevention’s (CDC) recommendations. These are solid recommendations, but they cannot eliminate the legitimate risk of infection when teaching in-person.
So what happens if a Virginia teacher feels it’s not safe enough to teach in the classroom despite being ordered to return? The short answer is that the teacher must return to school or risk losing his or her job. But there are some exceptions under federal and state law, which we’ll be discussing below.
The National Labor Relations Act of 1935 (NLRA) provides employees in the private sector the right to engage in collective bargaining and take collective action. This law could potentially come into play if two or more private school teachers have a good faith belief that returning to physical instruction is unsafe because of the coronavirus.
If these teachers decided to hold a meeting to protest the reopening of schools, Section 7 of the NLRA would likely classify these gatherings as protected activities. These teachers may also be protected if they decide to strike. But there are some key limitations to relying on the NLRA as a teacher in Virginia.
First, the NLRA doesn’t apply to public school teachers. Second, even if the NLRA somehow applied to public school teachers, Virginia law currently prohibits public school teachers from striking (although there is an attempt to change this). Third, teachers cannot collectively bargain until May 1, 2021, and they can only do so if the school board or other applicable government authority has given prior approval.
The Americans with Disabilities Act of 1990 (ADA) will probably be the most promising federal law for teachers wishing to stay safe from the coronavirus while also keeping their jobs.
The ADA bars discrimination based on a person’s disability and applies to a variety of settings, including the workplace. ADA rights include obtaining a reasonable accommodation because of an ADA-recognized disability.
The ADA recognizes disabilities that create a physical or mental impairment in an individual where that impairment substantially limits a major life activity. Being afraid of getting infected with the coronavirus is not a disability under the ADA.
However, if a teacher had a disability that was not only recognized by the ADA, but also placed the teacher at higher risk of severe complications from the coronavirus, then they might be able to obtain accommodations that include avoiding the return to the classroom.
A reasonable accommodation is a change to the workplace, such as modified job duties or adjusted employer policies. Additionally, the reasonable accommodation must not place an undue burden on the employer.
The identification of a reasonable accommodation for a teacher will be highly fact specific. Potential reasonable accommodations for a teacher at high-risk of major coronavirus complications could include:
- Reducing the teacher’s class size.
- Installing barriers in the classroom.
- Allowing the teacher to teach virtually from home.
- Offering extra personal protective equipment.
- Giving the teacher a classroom in a less crowded area of the school, such as at the end of a hallway or outside in a portable building.
Virginia teachers need to understand that even if they’re entitled to a reasonable accommodation, they may not get an accommodation that includes working from home. This might be true where schools have undertaken significant efforts to mitigate the risk of infection to anyone on the school’s premises, such as:
- Eliminating all or most extracurricular activities.
- Organizing students into class cohorts to minimize mixing of students.
- Staggering student class schedules.
- Universal mask use.
- Closing off most communal spaces.
- Reducing school assemblies.
- Making adjustments to classrooms like installing plastic sheets on the front of each desk, moving student desks further apart and disinfecting classrooms more often.
The Occupational Safety and Health Act of 1970 (OSH Act) is a federal law that, through the use of regulations, dictates workplace safety requirements for most private sector and federal employees. These regulations are created and enforced by the Occupational Safety and Health Administration (OSHA).
Virginia is one of several states where OSHA does not have jurisdiction. That’s because the OSH Act allows states to create State Plans. These are basically state-run workplace safety rules and programs that offer rights and protections that are at least the equivalent of what’s available through OSHA and the OSH Act. Virginia’s State Plan is enforced by the Virginia Occupational Safety and Health (VOSH) Program, which is part of the Virginia Department of Labor and Industry (DOLI).
Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19
In July 2020, pursuant to the Virginia Occupational Safety and Health Law, the Safety and Health Codes Board of the DOLI promulgated an emergency standard (regulation) that outlined Virginia employers’ duties regarding keeping employees safe from coronavirus infection.
In January 2021, these emergency standards became the Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19 (16 VAC 25-220). Subject to a few changes, the emergency temporary regulations became permanent.
Under the 16 VAC 25-220, most schools would likely fall in the medium exposure risk category. This imposes certain workplace safety requirements, including engineering, administrative and work practice controls.
According to this regulation, these safety requirements may include allowing teachers to work from home. However, just because a school requires a teacher to work in a classroom and not at home doesn’t necessarily mean the school is in violation of Virginia law.
Therefore, 16 VAC 25-220 doesn’t give a teacher the right to refuse to go into work. Instead, it gives the teacher a possible plan of action if they believe their workplace is too dangerous because of the coronavirus as a result of certain mandates are not being properly complied with.
Specifically, a teacher can file a complaint with his or her regional VOSH field office and ask for an inspection or investigation into their workplace. This request can be made if the teacher believes the violation can result in physical harm or create an “imminent danger.”
The Virginia Human Rights Act
The bulk of a Virginia employee’s workplace discrimination protections come from the Virginia Human Rights Act (VHRA). On its face, the VHRA doesn’t directly pertain to an employee who wishes to avoid going into their workplace because of the coronavirus. But due to a recent change to this law involving pregnant employees, pregnant teachers may have additional rights to reasonable accommodations in the workplace.
Section 2.2-3909 tells employers that, subject to certain caveats, they must provide reasonable accommodations to women who are pregnant or have medical conditions relating to pregnancy. If an employee has a known limitation that’s related to pregnancy, childbirth or a related medical condition, the employer must provide a reasonable accommodation to that employee unless the accommodation would impose an undue burden.
The key phrase is “known limitation.” The CDC has explicitly identified pregnancy as a condition that places in individual at heightened risk of severe illness from the coronavirus. Therefore, being at higher risk of severe coronavirus complications is arguably a “known limitation.”
This is important because it allows a pregnant employee to receive a reasonable accommodation (which could include working from home or staying outside of a classroom) without also needing to have an ADA-recognized disability.
The ADA does not consider limitations that are the result of a routine or healthy pregnancy to be disabilities. And the Pregnancy Discrimination Act of 1978 does not require employers to provide reasonable accommodations to pregnant employees, except in limited situations.
But thanks to the VHRA, a pregnant employee is now allowed to obtain a reasonable accommodation as long as they can show they have a known limitation directly related to the pregnancy.
Other Legal Rights or Protections
While teacher unions aren’t as powerful in Virginia as in other states, they still provide some influence in how schools operate.
A teacher may also have paid leave, which can be used to delay when they have to return to the classroom.
If a Virginia school teacher believes his or her school’s reopening to in-person instruction is unsafe, they don’t have many legal options to use to avoid going back to the classroom. However, if they are pregnant, have a disability or can identify violations of 16 VAC 25-220, they might be able to seek a reasonable accommodation that doesn’t require them to teach students in-person, or they might be able to force their school to take additional steps to reduce the chances of coronavirus infection.