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Ask Your Attorney
Ask Your Attorney Frequently Asked Questions with North Dakota United’s Legal Counsel, Michael J. Geiermann
North Dakota United is listening and responding to your concerns and questions surrounding this unprecedented school year. We want to assure you that #WeAreUnited with you as we face continued uncertainty.
In this article, North Dakota United legal counsel Michael J. Geiermann addresses some of your most frequently asked questions including wearing of face coverings, use of sick leave, extra compensation, negotiated agreements in a pandemic, and medical privacy concerns.
MASKS: Q: Do you have the right to wear a mask?
A: Yes, absolutely. For the safety and health of yourself, your family and your students, you can wear a mask even if your district does not require it.
Q: Can the school board require students and staff to wear masks or face coverings?
A: Yes, in North Dakota school boards have the authority to establish rules and regulations regarding masks or face coverings.
Q: Is the school board requirement of wearing masks for students/staff unconstitutional?
A: I believe the answer is no, but the North Dakota Supreme Court hasn’t ever ruled on this issue. However, under the current pandemic, I am fairly confident that the ND Supreme Court would find that a school board regulation mandating the wearing of face masks is constitutional. There are certain times when individual liberty must give way to the public good, and I believe that if faced with this issue the ND Supreme Court would make that finding.
Q: Can an educator ask students to wear a mask when it’s not required by the district?
A: Not without approval from administration. If an educator has a preference for their students to wear masks, that request would be taken into consideration by the school district and is likely to be denied. To strengthen the argument, the educator must come forward with an additional reason to have masks worn in their classroom, such as an underlying medical condition that makes them more susceptible to COVID-19. If you have a medical reason and are denied this request, please contact North Dakota United to see if we can be of further assistance to you.
LEAVE: Q: May a contracted staff member refuse to go to school due to fear of getting COVID-19?
A: No. In light of the current pandemic,
I don’t believe that a staff member could refuse to go to school simply on the basis that they are afraid they may contract COVID-19. The exception would be if that fear turned into some type of condition that could be characterized as a disability and prevented the staff member from performing their job. But, simply having the fear that you would contract the virus is not a sufficient basis to stay home and avoid your contracted duties. My concern would be that if that was the reason provided to their administrator, they would most likely be ordered to return to their contracted duties. In the event they didn’t, they could face charges of being insubordinate, which may require their termination or at least a hearing on the matter.
Q: Can a staff member use sick leave because they’ve been quarantined due to COVID-19?
A: Yes, but we also believe that an educator who must quarantine can access the 80 hour paid sick leave which has been passed by Congress. Sick leave is provided to teachers by state statute. There are also numerous negotiated agreements throughout the state of North Dakota that provide for sick leave and the accumulation of sick leave. I don’t think there’s any doubt that if a staff member contracted COVID-19, they would be allowed to use their sick leave. The tougher question is whether or not you could be asked to use sick leave when you may have been exposed or are simply quarantined. We would prefer educators use the congressional sick leave first before they are required to use their own accumulated sick leave. If you are required to be quarantined, and your administration takes the position that you need to use your accumulated sick leave please contact NDU so we can work through the issue together and make sure you are receiving the full benefit of the acts passed by Congress.
NEGOTIATED AGREEMENTS: Q: Does a negotiated agreement remain enforceable during a pandemic?
A: Yes, the negotiated agreement is still effective. Since each district has its own agreement with specific language, each situation is unique and therefore requires an individualized answer. If you have a specific question about using your prep period, or your dutyfree lunch, or the time you need to supervise students, etc. we need to hear from you as soon as possible. There will be times where these kinds of issues are not contained in the negotiated agreement. The North Dakota Supreme Court has indicated that it is then up to the discretion of the school district. But, once again, just because the administration takes a position doesn’t make it right. We want to make sure you get the right answers – but you have to ask us first!
Q: If a teacher is required to teach both distance learning and inperson, are they entitled to extra compensation?
A: Probably not. To answer the question, the first thing you must do is look at your negotiated agreement. I can venture a guess that there probably isn’t anything about distance learning
or extra pay for distance learning. In North Dakota, teachers are not paid by the hour. You are paid to do a job, to provide the services that are required to educate the children regardless of whether or not you can get it all done during a school day. You know that your service to these students is unmatched and a total devotion by you. Are there instances where you are going to have to put in extra time during nights and weekends? Yes. Have you been getting paid for that in the past? Probably not. Will you get paid for that during this school year? Probably not. We have every confidence that you have and will continue to do that job, but asking for extra pay is probably not the avenue you want to go through because most likely it is not in your negotiated agreement. Now, that doesn’t mean local education associations cannot try to reopen negotiations to see if they can negotiate extra compensation or extra duty pay in the event that it is becoming common. Whether or not you want to negotiate those things is up to you. Because the situation is so fluid and changing every day, we have to be able to be flexible and look at these issues as they arise.
Q: Are there any penalties for educators retiring late in the year?
A: Yes If you have a signed contract and decide not to perform your duties, you are in breach of contract. Breach of contract has been defined by the North Dakota Supreme Court as simply nonperformance. If you breach a contract in North Dakota, you are subject to damages. The damages that would be suffered by a school district would be the difference between what they were going to pay you, and what they will pay a substitute. The damages will likely be minimal, but theoretically you could have to pay. There is also a liquidated damages clause in many negotiated agreements that are enforceable and can be on a depreciating scale as the school year progresses. A breach of contract is also cause for the Education Standards and Practices Board to take action against your license. If you do make these decisions, please contact us so we can counsel you through the process as best we can.
MEDICAL PRIVACY: Q: May a school district administrator request medical info from a staff member who calls in sick?
A: Yes. The Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces and administers the Americans with Disabilities Act, has stated that employers can request medical documentation from an employee in the event that employee is showing symptoms of COVID-19 or has expressed that they believe they have COVID-19 symptoms. Medical information must be held confidential and exempt from the ND open records law, so if a staff member is asked by an administrator to provide medical information, the staff member has to comply, and that information will be held in a confidential medical file.
Q: Can a school district mandate the taking of a temperature for students/ staff?
A: Yes. The EEOC indicates that the taking of temperature is a medical
procedure. Employers are given the authority to ask that employees submit to medical procedures if it is job related or it is because of a business necessity. I am of the opinion that a school district could require both staff members and students to have their temperature taken.
Q: Can a school district or administrator require COVID-19 testing before employees return to work?
A: Yes. Under the current federal and state laws, medical procedures can be required by employers if it is either a business necessity or job related.
Q: Should members sign anything to authorize employers access to medical info?
A: No, under no circumstances. School districts are presenting various forms to staff in regards to medical history and condition and the types of accommodations that would be requested by the educator. In some of those forms we’ve seen a waiver request that states that by signing the request for accommodation form you are also giving permission to the school district to directly contact your medical provider and request medical information. It is my opinion that under no circumstances should any of our members ever sign that kind of release. You need to keep control of that situation and, if requested by administration, provide pertinent medical information, but under no circumstances should you ever let administration or a school district talk directly to your physician.
Q: If a member has a medical condition and is high risk for COVID-19, what steps should they take?
A: Your medical condition is confidential, private information. However, if you want a special accommodation from the school district in regards to that the first thing you must do is disclose your condition to administration. Under the ADA there is an interactive process, which is dependent upon good and meaningful discussions between employers and employees about how we can best accommodate someone’s medical condition. The first step in the process is that the employee has to ask for a reasonable accommodation and disclose to your school administration the medical condition that you believe needs to be accommodated. The law requires that you enter into this interactive process and that the parties come up with a reasonable accommodation. Once again, this is a very case-by-case dependent basis. If you feel this applies to you, please contact us so we can walk you through the necessary steps.
If you have any additional questions, please contact NDU at 701-223-0450 or comments@ndunited.org and we will do our best to answer them as quickly as possible.
