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Legal Corner June 20
  • Essential Public-School Personnel in the Age of COVID 19



    Due to the community spread of COVID 19, on or about March 18, 2020, Governor Murphy ordered New Jersey public schools closed. The initial closure was covered under Executive Order 104. The order provided in pertinent part:


    14. The Commissioner of the Department of Education (“DOE”), in consultation with the Commissioner of DOH, shall be authorized to permit schools to remain open on a limited basis for the provision of food or other essential, non-educational services, or for educational or child care services if needed in emergency situations after consultation with the Commissioner of DOH. The Commissioner of DOE shall also have the authority to close any other career or training facilities over which he has oversight, after consultation with the Commissioner of DOH.


    15. The Commissioner of DOE shall continue working with each public school district, and private and parochial schools as appropriate, to ensure that students are able to continue their educations during this time period through appropriate home instruction. Local school districts, charter schools, and renaissance schools, in consultation with the Commissioner of DOE, shall have the authority and discretion to determine home instruction arrangements as appropriate on a case-by-case basis to ensure all students are provided with appropriate home instruction, taking into account all relevant constitutional and statutory obligations.1


    New Jersey Public Schools are now officially pivoting to reopening planning. One question arises until schools are fully open, is which employees are considered essential. There does not appear to be a definitive answer.


    N.J.A.C. 4A:6–2.5 establishes a process for identifying essential employees. The regulation was also amended to encompass the COVID 19 state of emergency, and calls for the establishment of an essential employee attendance plan. The recent amendment provides:


    Each State department and agency shall review its criteria for the designation of essential attendance employees on an on-going basis during the COVID-19 emergency and, based on these criteria, update its roster of such employees. Employees so designated shall be notified as necessary during the duration of the COVID-19 emergency of this designation and shall at that time be provided with a copy of the department or agency’s Essential Employee Attendance Plan. The Plan shall include the responsibilities, requirements, and expectations of such employees in the event that a period of inclement weather or other adverse situation requires the curtailment of State operations or services.


    On March 23, 2020, the New Jersey Department of Education (DOE) issued guidance, referencing the essential employee attendance plan. The guidance re-states that, under Executive Order 107,2 all employers are required to accommodate tele-work or work-from-home where possible. If employees must be on-site, their presence must be kept to the minimum number required to ensure that critical operations are able to continue.


    The DOE guidance further clarifies:

    When developing and updating its emergency preparedness plan, each district will need to consider their specific circumstances to determine which personnel would be considered essential and need to perform some duties during a closure. It is likely that certain staff would be needed in most districts, such as the chief school administrator, to oversee and coordinate operations; the school business administrator, to maintain business office operations; information technology staff, to assist staff using remote access and to implement any online instruction; staff involved in the preparation or delivery of food; and custodial and maintenance staff, to provide access to district facilities, and to clean and sanitize buildings as needed.3


    What is apparent is that the DOE’s March 23, 2020 guidance was based on a specific moment in time to address the emergency closing of schools, and to navigate how and by what means education and other services would continue. For example, referring to special education, the guidance provides:


    This is a temporary situation, and districts must offer special education services to the most appropriate extent possible while students are away from their schools/programs. IEP teams may need to consider compensatory services when students return to school and IEPs may need to be adjusted accordingly. The IEP team should determine the amount of compensatory related services students with IEPs may require, on a case-by-case basis when school resumes.4


    This and other portions of the DOE March 23, 2020, guidance implied that, since we find ourselves in unprecedented circumstances, there is a need for flexibility. Under the DOE Reopening Guidelines released on June 26, 2020, it is now clear that the DOE intends to give districts extensive flexibility as districts prepare schools to reopen for the 2020-2021 school year.


    As we travel through the phases of closing to reopening, questions have arisen as to district authority to arrange staffing and assign tasks. Some districts have asked staff deemed “essential” to perform what is regarded as non-essential duties during the remote learning period. It was recently reported that the Paterson custodians have filed suit against the district for asking custodians and maintenance workers to perform services other than “essential services.” Distributing meals, providing school supplies and technology to students, and sanitizing and repairing essential school equipment are listed in the article as essential services.5


    Another question is whether districts can require teachers to come to school to empty their classrooms. Presumably, some districts need rooms emptied to enable them to be properly sanitized and, otherwise, prepare the rooms for the opening of school next year.


    Districts and other public employers have authority to designate which categories of employees they deem to be essential.6 Accordingly, as we piece together the various executive orders and DOE guidance, districts have been asked to designate which employees are essential, and state the rationale for said designation. If needed, districts should be able to pursue amendments to their original closing plan designations through their respective executive county superintendents. Arguably, as we move almost exclusively toward reopening, district authority will certainly expand to require appropriate categories of employees to work through the summer months.


    Before bringing employees into the district, however, districts must comply with all guidance provided to protect the health and safety of any school employee who will be required to report to a school building. District policies will have to be updated based on the DOE June 26 Guidance and recommendations from the United States Center for Disease Control (CDC) and the New Jersey Department of Public Health.7 Medical knowledge concerning COVID 19, how it spreads, and the best containment measures is constantly changing. Thus, it is incumbent on district administrators to always be seeking the most up-to-date information. In addition, district policies must be updated to incorporate legislative changes due to COVID 19. For example, the New Jersey Legislature recently amended the New Jersey Family Medical Leave Act.8 S-2304expands the definition of a “serious health condition” during a public emergency so that workers can qualify for benefits if they or a loved one has been exposed to a communicable disease and must self-quarantine.


    It is best to consult with your board attorney as your district prepares to re-open schools and how that might impact which categories of employees are essential as well as and which duties are essential during the current state of emergency. It is also important to note that the possibility of reverting back to all virtual learning continues until a vaccine or other definitive treatment is found.



    1 https://nj.gov/infobank/eo/056murphy/pdf/EO-107.pdf 

    2 https://nj.gov/infobank/eo/056murphy/pdf/EO-107

    3 https://www.state.nj.us/education/topics/COVID19%20Frequently%20Asked%20Questions%20(FAQ) %20Related%20to%20School%20Emergency%20Preparedness%20Plans.pdf

    4 Id. at 7.

    5 https://patersontimes.com/2020/05/06/paterson-school-district-allegedly-told-custodians-to-come-in-for-non- essential-work-amid-pandemic-now-they-are-suing/

    6 State of New Jersey Department of Corrections, Petitioner-Respondent v. P.B.A. LOCAL 105, Respondent-Appellant, ___ A.2d ___ 2008 WL 2050832 (App. Div. 2008) (unreported).

    7 https://www.nj.gov/health/cd/documents/topics/NCOV/COVID19_Guidance_Schools.pdf

    8 N.J.S.A. 34:11b, et seq.

    9 https://www.njleg.state.nj.us/2020/Bills/S2500/2304_I1.PDF