With the new school year fast approaching many aging teachers will have a tough choice to make. Whether to go into work for in-person education or risk losing their jobs. With COVID-19 numbers on the rise across the nation, policy makers pushing a return-to-normalcy objective, and many parents exhausted after four plus months of working from home with their kids, many schools are ignoring the risks and reopening schools.
COVID-19 & Risk
COVID-19 is caused by the Sar-CoV-2 virus, more commonly known as the Coronavirus. From what we’ve learned so far about COVID-19, it spreads mostly through respiratory droplets when individuals speak, cough, sneeze, yell or sing. There is concern that the virus can also survive on surfaces for hours, risking spread by those touching the surfaces and then infecting themselves after touching their faces.
Those who have been infected with the virus and are symptomatic, that is they are showing symptoms such as fever and dry coughs, are easy to spot. Preventing symptomatic people from entering schools or buses can reduce the risk of transmission to others. However, those carriers of the virus who have no discernible symptoms, Asymptomatic, are also capable of spreading the virus. Temperature checks may be ineffective with these individuals.
Gatherings of individuals in close quarters increases the risk of exposure, especially when Asymptomatic carriers of the virus are able to spread the infection. Forcing teachers and students into classrooms, after students have crammed onto buses, increases the odds of an outbreak. The longer a noninfected person is exposed to the virus, the greater their chances of contracting COVID-19.
“The more people a student or staff member interacts with, and the longer that interaction, the higher the risk of COVID-19 spread.”1
A common concern for many teachers is having to decide whether to put themselves and their families at risk by returning to work, or risk losing their jobs and health insurance if they refuse to return for in-person classes. Many live with spouses or children with medical conditions for which the CDC has identified as at “increased risk” of serious illness from COVID-19. Others suffer from one or more of these conditions themselves.
“One in 4 teachers in the U.S., or nearly 1.5 million people, are at increased risk for serious illness if they become infected with the coronavirus, according to a new report from the Kaiser Family Foundation (KFF). This figure includes educators who are over the age of 65 or who have an underlying health condition that makes them more vulnerable to complications from COVID-19.”2
Teachers of all ages are expressing their concerns with their respective school boards’ plans for bringing kids back to school. Some districts simply have half-baked plans to deal with COVID-19 that offer little to no protection against viral infection. While others seemed to have given up on the idea of enforcing any sense of Social Distancing or mask wearing with their students.
As many as 2/3 of teachers polled are in favor of continuing remote learning to prevent the spread of the illness. Re-opening schools too soon has led to a surge of new COVID-19 cases in other areas, as is reported to be the case in Israel.3 Going to full online, or remote, learning will help reduce the spread of new cases. Additionally, it will prevent kids from becoming infected while at school and bringing the virus back home to their older and more at-risk relatives.
A major concern of opening schools safely must take context into account. The greater the spread of the illness in the community, the more likely protections in place will prove to be inadequate.
“Outbreaks in schools are inevitable,” says Otto Helve, a pediatric infectious disease specialist at the Finnish Institute for Health and Welfare. “But there is good news.” So far, with some changes to schools’ daily routines, he says, the benefits of attending school seem to outweigh the risks—at least where community infection rates are low and officials are standing by to identify and isolate cases and close contacts.4
Many areas across the country have seen a rise in new cases reported, some breaking records daily. Teachers’ concerns, particularly in these areas, should be taken seriously. When teachers start coming down with COVID-19 symptoms and are quarantined for two weeks, how long before these schools find themselves short staffed? This doesn’t even address the school bus drivers, cafeteria or custodial employees. At what point will these schools be forced to close down again?
While Social Distancing is impractical on school buses and in classrooms where at full capacity, staggered in-person schedules may alleviate some of these concerns. But this only works if proper protocols are rigidly enforced, including mask wearing and Social Distancing among teachers and students.
Perhaps one avenue of relief for teachers, for those who have the opportunity, is for their unions to address COVID-19 with school boards and administrators. Teachers’ Unions can have a big impact if they forcefully pursue the interests of their members. Ultimately, teachers will need to continue to be their own advocates to ensure that their health interests are not being swept under the rug.
A major concern which has not been satisfactorily addressed by administrators is the risk to older teachers with reopening schools. We know that the risks involved with COVID-19, including hospitalizations and deaths, are skewed toward older individuals. With nearly 30 percent of the nation’s teachers aged 50 or older, reopening schools will be putting many of them at greater risk.5
Older teachers, and those with qualifying underlying health conditions, fall into the “increased risk” group of teachers. Many are employed by districts which are refusing to provide an option for this group to continue with remote education. This could possibly be a violation of the Americans with Disabilities Act. Additionally, most are not offering an alternative in the form of unpaid leave which would allow teachers to have positions upon returning to work, much like maternity leave.
Simply put, school leadership across the nation is failing their aging teacher population by not offering viable options to stay home while COVID-19 numbers continue to increase daily. This will force many to choose their health, and the health of their immediate family members, over their careers. Some will resign while others are fired. Younger teachers will largely be exempt from such life-altering decisions. The Age Discrimination in Employment Act only covers situations where employees are treated differently because of their age. Employers giving the same option to all employees, regardless of age will likely absolve them of any Age discrimination liability.
This is a particularly unfair treatment of nearly one third of the teacher population, especially considering the decades of service they have already provided. Teaching is not simply a job for most, it is a calling and one in which they take great pride.
While teachers who contract Coronavirus will likely be quarantined for two weeks, schools will need to have a reliable pool of substitute teachers. During normal times, recently retired teachers have often served as a safety net where substitutes were in greater need. Given their greater risk from exposure, it is doubtful that many will accept a substitute teacher job in this environment.
Possible Liabilities to Schools for in Reopening Too Soon
If school administrators, elected representatives, and parents continue to push in-person education in the midst of a pandemic and escalating new COVID-19 cases and deaths; then the districts may potentially open themselves up to liability on multiple fronts.
The Americans with Disabilities Act of 1990 (ADA) and other Equal Employment Opportunity laws, including the Age Discrimination in Employment Act of 1967 (ADEA), apply even during a Pandemic. For example, forcing those deemed to be at “increased risk” of serious illness from COVID-19 to stay home would violate their rights under the ADA if they wanted to come into work.
Additionally, school districts, as employers, are still required to consider reasonable accommodations for those with disabilities. The big question is whether those with the CDC’s “increased risk” underlying conditions, including older teachers, are deemed to a have a disability under the ADA. This is a fact-dependent question meaning the employer must consider those facts relevant to the employee’s situation, including: the employee requesting a reasonable accommodation; community spread of COVD-19; safety precautions in place at work; likeliness of exposure to the Coronavirus at work, etc.
Certain violations can occur in how an employer tests and treats its employees in the process of its COVID-screenings. Normally, the taking of an employee’s temperature is a medical examination and is limited by the ADA. However, if a pandemic illness becomes widespread in the community, such as COVID-19 has, then employers may check the body temperatures of their employees.
Teachers still need to be aware of their rights as employees in the workplace. Though the circumstances of COVID-19 have eased some of the ADA’s restrictions on employers, teachers still have privacy rights when it comes to their medical information. This could create liability under the ADA if a school district violates these rights.
Ultimately, it remains to be seen whether the courts allow cases to be brought by aging teachers, or others with “increased risk” underlying conditions, against their employers under theories of Age or Disability discrimination. We no doubt will also see some Wrongful Death suits brought as a result of schools reopening too soon. Until Congress passes any laws freeing employers of liability in these areas though, teachers may have a legal recourse if they feel they have been treated differently by their employer as a result of their age or disability; but that will depend on their specific set of facts.