Can My School Force Me to Sign a COVID-Waiver? And Other Questions About Teaching During COVID
By: Lisa Walton
Tags: Law, Education, Teaching, Covid 19, Schools

Can My School Force Me to Sign a COVID-Waiver? And Other Questions About Teaching During COVID Lisa Walton Follow Oct 11 · 6 min read

Photo by airfocus on Unsplash

Disclaimer: The following is not legal advice and is for informational purposes only.

Going back to school this year comes with the increased risk of contracting COVID-19. Cases of COVID are already being reported among students and teachers.

To deal with this unprecedented situation, some schools have adopted “strict” safety guidelines. Mandatory mask-wearing. Keeping students 6 feet apart. Plexiglass dividers. Hand sanitizer and disinfecting.

But we don’t yet know if these measures are enough to keep students and teachers safe.

Other schools are opening without basic safety measures in place. Overcrowded classrooms and hallways. Optional masks. No social distancing. Students coming to school sick.

In this atmosphere, it is inevitable that some teachers will contract COVID-19 at work. That’s a scary thought for many reasons. You are likely worried about your health and that of your family. Your livelihood. Childcare. And many other things.

Here’s what you need to know from a legal perspective.

Do I have to use my sick days if I get COVID-19?

The Families First Coronavirus Response Act, (the FFCRA) provides up to 80 additional hours of sick leave to employees for COVID. These hours are on top of the sick leave your employer provides. After you use these 80 hours, each district decides what additional time off, if any, employees receive. Check with your district to see the policy related to COVID illnesses.

Do I have to use my sick days if I am forced to quarantine?

The 80 hours of additional time provided by the FFCRA applies only to quarantines ordered by a doctor or the governor. These hours can be used for yourself or to take care of someone who has COVID or has to quarantine. Some districts allow teachers to continue teaching from home while quarantined. You should check with your district for local guidelines.

What if I’m teaching remotely and get sick? Can I take extra time then?

The federal law applies to all employees, whether they are working from home or in person. If you contract COVID-19 you may take time off, even if you are teaching remotely.

A related question that I get is what happens if I am teaching remotely and get sick with something other than COVID? Can my district force me to work while sick? Your regular contract provisions governing sick days apply to illnesses other than COVID. If you aren’t required to go into the classroom ill, you aren’t required to work from home either.

When can I go back to school after quarantine or illness?

Unfortunately, there is no easy answer to this question. Each district makes its own rules. Some districts require clearance from a doctor. Others require a negative COVID-19 test to return to school. In other districts, the quarantine expires after ten or fourteen days.

The Trump administration has added teachers to the category of “essential workers”. This means that you may have to keep working after exposure to COVID. Check with your district for local guidelines.

What if I have to take time off to care for children or other family members?

The FFCRA also expanded the Family Medical Leave Act (FMLA). Employees now have up to 10 weeks of paid leave at two-thirds of their salary. FMLA applies when you cannot work because you need to care for children or other family members. It also applies if you have to stay home because your child’s school or daycare is closed. You would use the 80 hours of paid COVID leave first and then the FMLA benefit would apply. If your school gives you the option to work from home you are not eligible for the expanded FMLA benefit.

Do these benefits apply if I am a new teacher?

You have to work thirty days to be eligible for the extended FMLA benefit. Once you have reached that milestone the benefits will apply. Check with your district for local policies about accrued sick days.

Do I have to tell my school if I get COVID?

Public health experts rely on contract tracing to stop the spread of COVID-19. Protecting others in the community outweighs health privacy concerns.

If you are exposed to or contract COVID-19 outside of school you must report this to your supervisor or human resource department. Your district will report the exposure or case to the local health department. They will not share your personal information. The board of health will the direct the district on how to proceed.

If the exposure occurs at school, your school should provide notice to parents. This announcement will not identify you either.

However, schools are close-knit communities. People will likely figure out which teachers or students were the first to get sick. There is nothing you can do about this.

Will Workmen’s Compensation Cover a COVID diagnosis?

It depends. Some states adopted a presumption of coverage for essential workers who test positive for COVID. If you work in Alabama, Alaska, Arkansas, California, Connecticut, Illinois, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, North Dakota, Utah, Vermont, Washington, Wisconsin, and Wyoming, you are covered.

If you don’t work in one of those states, don’t despair. Several other states have similar legislation pending. Others have directed employers to consider and pay claims of essential workers.

To collect under a workmen’s compensation claim you need to prove the injury or illness is a result of work. With COVID-19 that may be difficult to do. Some states have resisted an obligation to pay these claims. They maintain that it is impossible to prove a teacher got sick at work. In those states workmen’s compensation will likely not apply.

What about COVID-19 waivers?

Some districts are asking teachers to sign waivers. These waivers release the school from liability if a teacher gets sick or dies from COVID-19.

No-one knows what will happen when schools reopen. Districts are trying to protect themselves from possible lawsuits.

COVID-19 waivers may be stand-alone documents. Or, they might be hidden in your standard teaching contract. Make sure to read your contract carefully. This is good advice always, but especially this year. Don’t be afraid to read the fine print and get legal advice, if necessary.

Will my district have a waiver?

Waivers have popped up in a variety of places for teachers, coaches, and parents. Luckily, they are not common at this point. The use of waivers is a decision for individual districts. You should read your contract carefully before signing anything. You can also check in with your union, if you have one. I would not inquire about a waiver. You don’t want to give anyone any ideas.

Do I have to sign it?

Probably not. The National Education Association (NEA) and many state teaching organizations have opposed the use of waivers. These organizations discourage teachers from signing them.

However, whether to sign is a personal decision. If the waiver is part of your teaching contract and you refuse to sign, you could lose your job. Or, at the very least, the protections of your contract.

Are waivers enforceable?

We don’t know for sure, but probably not. First, signing a waiver means you know and appreciate the risk you are taking. At this point, COVID-19 is still new. We do not understand the long term ramifications of contracting this disease. There is no informed consent.

Employees cannot waive their rights under workers’ compensation laws. Nor can school districts shirk their OSHA obligation to provide a safe work environment.

Tenured teachers cannot be disciplined or fired for refusing to waive their rights. And, in states with collective bargaining schools cannot change educators’ working conditions unilaterally.

Finally, most waivers are not enforceable. For a waiver to be valid both parties must have equal bargaining power. In this scenario, the school district has all the power. Especially if these waivers appear right before or even after school begins. Teachers forced to sign waivers are operating under duress.

Can my school require me to waive my families’ rights against the school if I get COVID?

Probably not. You may not waive the rights of other adults. With respect to children, the law regards such waivers skeptically. In most cases, a parent cannot waive negligence claims on a child’s behalf. That said, a school’s immunity may protect them from liability claims.

What if my school posts signs disclaiming liability?

Many schools have posted notices disclaiming liability. These notices warn people who enter that they assume the risk of contracting COVID-19.

These notices are no more enforceable against teachers than waivers. They are also invalid against students, who are usually minors. Students not only have a right to attend school, but they are also legally obligated to do so. They may not be forced to relinquish rights to comply with the law.

If you have any additional questions, please don’t hesitate to reach out to us.