Education Law Notes  

Governor Lamont has issued a new Executive Order that requires local and regional boards of education to continue providing eligible employees with certain paid leave under the Families First Coronavirus Response Act.  (“FFCRA”).  Executive Order 10, Section 6, was issued yesterday (February 4, 2021) and is entitled “Paid Leave Requirements for Staff of Local and Regional Boards of Education.”  It requires, effective December 31, 2020, that all such boards of education “continue to make available paid leave for eligible employees” and that the leave be administered in accordance with Section E of the FFCRA, which is the Emergency Paid Sick Leave (“EPSLA”) section of the FFCRA.  While the order specifically applies to local and regional boards of education, it may also apply to regional educational services centers (and their magnet schools) and charter schools.   

Under the EPSLA, full-time employees may receive up to 80 hours of paid leave if they cannot work, or telework, for the following reasons:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Eligible employees receive paid sick leave in the amount of their salary, capped at $511 per day ($5110 in the aggregate) for reasons one, two and three.  For the remaining circumstances, employees paid leave is capped at $200 per day ($2,000 in the aggregate).  Executive Order 10 requires that boards of education carry this burden “for the duration of the public health and civil preparedness emergencies, unless earlier modified…”  Currently, the Governor’s Executive Orders are set to expire on April 20, 2021.  Arguably, that is when the obligation ends, unless further extended.

While Executive Order 10 reinstates this burden on boards of education, there are some pieces of good news for boards concerned about the costs of the mandate.  First, Executive Order 10 does not obligate local and regional boards to grant the additional 10 weeks of paid leave under the Emergency Family and Medical Leave Expansion Act.  (“EFMLA”).  Previously, the EFMLA granted eligible employees 10 additional weeks of paid leave capped at $200 per day if their child’s school or day care was closed due to COVID-19.  Executive Order 10 limits the paid leave obligation to EPSLA circumstances.

Another piece of good news is that Executive Order 10 does not require additional leave for employees who exhausted some or all of their EPSLA leave prior to December 31, 2020.  Thus, employees who have already used (all or some of) their 80 hours of paid leave do not start anew.

Finally, Executive Order 10 states it is effective December 31, 2020, but it does not specifically state how to treat employees who were denied paid leave after December 31, 2020.  Must boards of education pay such leave retroactively if the employee did not report for work?  Must boards reinstate sick, personal or vacation time charged to such employees who did not report to work?  The Executive Order does not provide specific answers.  However, as employees and local bargaining units reach out to the school administration to address these issues, the lawyers at Pullman and Comley stand ready to assist. Stay tuned.