In this special section:

• How ATPE’s response to the pandemic and member concerns has evolved
• A Q&A with a clinician from the University of Texas at Austin
• Important information about your legal rights during this time
• How special education has been affected by COVID-19

A Changing Response in a Changing World

By Kate Johanns

On March 6, ATPE sponsored an event in which Texas Tribune co-founder and CEO Evan Smith interviewed Texas Education Commissioner Mike Morath. Even though COVID-19 was on everyone’s minds—Smith and Morath greeted each other with a jovial elbow bump—it was the sort of pre-coronavirus event where breakfast tacos and a community container of salsa sat in the back. In other words, it was very much before COVID-19 rocked the entire United States and Texas public education in particular.

Smith and Morath spent the first eight-plus minutes of their conversation (available at https://bit.ly/ATPE-TT-March6) discussing coronavirus—again, very much with a before mindset. TEA had dealt with this type of thing before, Morath said, citing school closures and waivers during Hurricane Harvey, Ebola virus cases in 2014, etc. Smith and Morath spoke of taking the “normal precautions” in ways that now feel awkward: “As a student, try not to lick a doorknob; it’s generally frowned upon,” Morath said wryly. “That’s actually in our employee handbook,” Smith bantered back.

As Twitter pundits would say: That didn’t age well.

The conversation turned to TEA’s takeover of Houston ISD, and the education stakeholders in the room—ATPE staff included—finished their tacos and went back to the office. Within a week, we lived in a different world.

The evolution of ATPE’s response

By March 11, ATPE had launched a COVID-19 FAQs and Resource webpage to provide Texas educators with access to accurate, confirmed information about their rights and responsibilities in a COVID-19 world. (One of the first comprehensive resources for Texas educators, the webpage has served as a model for other education associations across the country.) The World Health Organization declared COVID-19 a pandemic. Tom Hanks announced he had the virus. And one by one, school districts announced they were extending spring break by a week to get the situation under control.

Over the next four weeks, Texas educators implemented a remote instructional environment, preparing for Gov. Greg Abbott’s inevitable April 17 announcement that Texas public schools would remain closed for in-person instruction for the rest of the 2019-20 school year. Texas educators again had to adapt to a new set of challenges.

Just as educators’ experiences have evolved, so has ATPE’s response, though it has always been rooted in three areas: advocacy with state and federal decision makers, individual representation by attorneys, and serving as a trusted source for information in a time particularly rife with rumors and misinformation.

“There’s been quite a bit of evolution,” says Paul Tapp, ATPE managing attorney. “It originally happened so fast, going from ‘oh, there’s a concern’ to everyone working from home for the rest of the school year. The issues we thought we might deal with in the spring, as far as individual teachers who had health concerns, ended up being resolved at the time because everyone was remote teaching. We ended up answering member questions about liability for using personal devices, liability if something inappropriate occurred during a virtual class, and of course work hours. A lot of students were very hard to reach, and educators were spending a lot of time in the evenings trying to engage students and parents.”

The state of uncertainty—where educators have spent most of the summer and will reside until more districts announce their plans, given the general nature of TEA’s reopening guidance—has produced more general concerns.

“The biggest concern we get is ‘I do not feel like I’m going to be safe returning to the classroom—what are my rights?’” Tapp says. “There are a lot of educators whose personal health conditions either put them in an at-risk group or with close family members in an at-risk group.”

Until more specifics are known about individual districts, ATPE staff attorneys counsel members about the interplay of emergency COVID-19 legislation, such as the Families First Coronavirus Response Act (FFCRA) and the Emergency Family Medical Leave Expansion Act (EFMLEA), and existing laws such as the Americans with Disabilities Act (ADA) that will guide whether employees with health concerns receive accommodations.

It’s a complicated area of the law, Tapp explains, and ATPE has worked hard to combat the rumor mill.

“The most important thing we’ve done is provide accurate information to our members,” he says. “There’s a lot of information that is either intentionally wrong or from people who just don’t know what the rules are.”

For instance, rumors have swirled statewide about educators being asked to sign “liability waivers” before returning to work.

“That is something close to an urban myth that has taken on a life of its own,” Tapp says. “It’s honestly unlikely that it would be true as districts don’t have that much concern about liability—and there’s also serious questions as to such a waiver’s enforceability. I tend to think this is something that has just gained traction on its own.”

He adds: “The most important thing I tell members is to take a moment to think about what you have heard and where you have heard it from. Unfortunately, we are in a situation now where there are more unknowns than knowns. That will change as things evolve, but that is where we are right now, and it helps to take a moment to recognize that.”

Connecting the dots for educators and lawmakers

ATPE Governmental Relations has seen similar evolution in its advocacy efforts. Initially, the ATPE lobby team worked to get a handle on how districts were reacting statewide and answer member questions. ATPE staff reported on daily press briefings at all levels of government, and lobbyists analyzed a byzantine stream of guidelines and restrictions from the U.S. Department of Education and the Texas Education Agency. Given the time of year, however, efforts quickly turned to advocating for the waiver of STAAR requirements.

“We’ve gone from giving people information to proactively working to shape the decisions being made,” ATPE Senior Lobbyist Monty Exter says. “Our greatest advocacy tool remains our ability to educate. Educating state leaders is one of the most important things that we do and what we’ve being doing a lot of. Early on, we were a conduit of information from policymakers to our members. Now, we are a two-way conduit, explaining to policymakers how our members feel about both the situation generally and the policies they’ve been making.”

Just as the ATPE Member Legal Services Department has counseled individual members on ADA, FFCRA, etc., ATPE Governmental Relations has explained the interplay between these laws and various levels of government to decision makers.

“You cannot overstate the volume of information that has come out in the past four months,” says Jennifer Mitchell, ATPE Governmental Relations director. “We’ve had to digest it and figure out what each document means and how it interacts with other documents. There’s been a flood of information that is often contradictory and often changing.”

Exter agrees: “We take in all of the information and see how the different areas interact with one another from a policy and a logistical standpoint. We see connection points and communicate how that system works together. This is huge for our members and for policymakers who frankly don’t often see all those connections either.”

ATPE Governmental Relations has also seen the rumor mill at work. In one example, another organization shared information about retirement amid COVID-19—information that was not necessarily inaccurate but also not fully fleshed out. A news outlet picked it up, and suddenly Texas educators were discussing the concept of “temporary retirement,” which doesn’t exist in the Teacher Retirement System (TRS). Basing decisions off inaccurate information could have long-term detrimental consequences.

“We’ve tried to be really clear in our communications,” Exter says. “There are significant consequences because of the way TRS is set up. We want to make sure people are fully informed in making those decisions.”

A buyer-beware attitude to information is critical, especially when we are spending so much time on social media.

“Bad information does spread quickly and widely, and that’s more of a challenge now than it has been in the past,” Mitchell says. “It’s free, and it’s widely available. It’s not good advice, but there’s plenty of it out there.”

A member-driven response

Since its founding, ATPE’s advocacy has been wholly member driven. The messages ATPE lobbyists deliver in Austin and D.C. come from the member-written-and-adopted ATPE Legislative Program and the association’s standing and current resolutions—which until July 9 did not contemplate COVID-19 or any sort of public health crisis necessitating a mass closure of schools for in-person instruction. ATPE’s membership is diverse, ranging from educators working in giant urban schools to the smallest of 1A districts out in the Panhandle. Just as Americans and Texans have widely varying and strong opinions about the severity of the pandemic and the appropriate level of response, so do ATPE members.

“It’s important for ATPE members to understand the staff does not decide which positions to take on issues like these,” Mitchell says. “We are aware there are differences of opinion among our 100,000 members, so we respond according to the views of the majority of the members we hear from, guided by the actions of the ATPE House of Delegates.”

In addition to anecdotal data collected through member calls and emails, ATPE conducted a survey open to all Texas educators to determine their top concerns about returning to in-person instruction. (View the results at https://bit.ly/ATPE-COVIDsurvey.) This was followed by questions dedicated to COVID-19 on ATPE’s annual membership survey. Then, during the virtual ATPE House of Delegates (HOD) meeting July 9, member-delegates proposed and adopted two resolutions calling for ATPE to urge the state to keep schools closed for in-person instruction until Texas has demonstrated a “flattening of the curve,” as well as require districts to include educators and parents in development of plans to reopen campuses. The HOD also adopted a resolution urging a waiver of STAAR and TELPAS requirements for the 2020-21 school year.

With members driving the agenda through a democratic process, ATPE released its own plan for reopening campuses (atpe.org/COVID-recs).

ATPE is here for you

As of this writing, we are still in a period of uncertainty. TEA has issued reopening guidance allowing school districts to begin the 2020-21 year with a four-week transition period of virtual instruction that can be extended if needed by a school board vote. Districts across the state are beginning to announce their specific plans. Tapp says educators should remember how quickly TEA’s guidance has evolved.

“Over seven days we went from the understanding that schools were going to open at the regular time as if nothing was going on at all to pretty much every level of authority saying no, districts have the flexibility to take the local environment into account,” he says. “So, it’s important for educators to first take a moment and think about what they’ve heard.”

In a period with more questions than answers, the one thing ATPE members should not question is that ATPE is here for them. We are here to provide you with the answers we can.

“Depending on what your question is, the best resource might be Member Legal Services, or it might be our Governmental Relations team,” Tapp says. “It just depends on what you need. We’re here to help.”

Learning to Tolerate Ambiguity

Interview by Sarah Gray

With equal desire to care for students in person but remain healthy and safe, educators find themselves in a precarious place as the 2020-21 school year begins. For insight into the mental and emotional effects of COVID-19 on educators, ATPE spoke with Travis Bauer, a doctoral candidate in counseling psychology at the University of Texas at Austin. Bauer has worked as a clinician for teachers and is part of a lab conducting research on teacher stress.

How do you define teacher stress?
In my lab, we start from the baseline of what is “teacher stress.” Theoretically, we talk about the transactional theory of stress. You’re at heightened risk for stress when your perceived demands outweigh your perceived resources. Our lab has done a lot on the granular level [to determine sources of teacher stress]. What are the factors, structurally, whether it’s lack of funding or amount of supplies or huge classroom sizes?

On the one hand, there’s no lack of areas to study, and that’s a dark comment. I can be the best therapist I can be and give my teacher the best treatment or sit with them during a difficult time, but if they aren’t supported by their administration, aren’t paid well, or don’t feel safe in their environment—however they define that—the baseline is still going to be difficult. Things were difficult before, but now the pandemic is overlaid on everything else. Every single one of my clients had their own trials and tribulations before the pandemic. Mrs. X was struggling with childcare during the normal day, and now it’s like, “Will their children stay with them while they teach remotely?”

I can’t even fathom the levels of complexity teachers are
going to work through as we figure out how to open schools. It’s upsetting to me that policymakers prioritized opening bars and restaurants over school. It’s a matter of trying to make all these inequities visible to people who don’t see them and to try to advocate to protect not just the teachers but the cafeteria workers, custodial staff, everyone.

How has the debate over reopening protocols affected educators?
As a clinician interested in the neurobiology of trauma and how it affects our interactions, I can say that if for some reason teachers have to be in school in August, but we’re still where we’re at now [July 2020] in terms of COVID-19 cases, [it’s going to be stressful]. If you’re a teacher in a classroom worried about a student who might have something because they are sniffling, your body is in a state of survival and perceived threat. That is going to make it difficult to execute on any kind of complex task, much less teach 25, 30 kids. Unless folks are made to feel safe, it’s not going to be productive. It might be productive in the sense that students will not be in parents’ or caregivers’ homes and perhaps that leads to work, but in terms of real teaching going on, I think it’s going to be a pretty mixed bag just because when folks feel scared, it’s hard for them to focus.

How did you develop your professional interest in teacher stress?
Our lab helped push focus on teachers because they need to be seen, too. Once I started seeing teachers as a therapist, it was just self-evident. Why aren’t we helping them more? There are so many factors working against supporting teachers for their own sake and that’s, to me, the message that needs to ring the loudest: Teachers deserve support. Not just because they are seeing your kids, but because they are amazing people who are doing the work. I’m glad there’s this scrutiny now being given to schools about everything, but these sort of considerations for safety and resources should have been had 20 years ago. It’s frustrating that it’s in the context of crisis that people are thinking about schools, and it’s really only because of COVID that people are considering these things. The more I work with teachers, the more I’m just like, “Why does no one prioritize teachers just because they’re human beings?”

What can people do to support educators during this time?
I think the bigger ask would be for folks to be involved in their community and to do basic research of what public education is like in their district, city, and state and just look at some of the stats [and funding]. I feel like basic education for folks may inherently inspire people to join the cause to support teachers and public education broadly. On a smaller level, especially for teachers and teachers who are parents, just take care of yourself. Be easy on yourself. The hardest thing for a lot of teachers is they are their own harshest critics. They have such a critical eye for how to improve lesson plans and their approach to others, and that critical lens can be turned inward to a detrimental effect.

I don’t think COVID is going anywhere fast. It’s such a natural instinct for all of us in this country, but particularly folks in education, to go to a problem-solving mindset. Tolerate the ambiguity of the fact that we are in this weird space, and in that ambiguity, make some space for the pain you feel, the confusion, and the sadness, but also make some space for the things that feel nourishing, whether that’s your family, kids, partner, or close friends, and actually make the time for it. One thing I talk to a lot of my clients about is “boring self-care,” not like yoga or a spa day, but clipping your toenails, taking a shower, or getting out of bed. Give yourself a boost for doing those things because those are indicators of life and growth and progress toward the next day.

Do you have any advice for the coming school year?
Make space for the disappointment. The lesson plans you had for the fall are going to look different. In so far as you have control over this: Less is more. I imagine there’s going to be a push to optimize time to get maximum learning over Zoom. We have short attention spans [for] video formats. Just understand you’re working against people’s nervous systems and brains that can only take so much info, and if you feel like you’re hitting a wall, it’s not you. It’s not like teachers are messing up or not getting it right or not figuring out the right combination to make the perfect plan. It’s because we’re all in this crummy situation, and I think the biggest gift we can give students, especially as educators and helpers, is just to connect with them and check in. The therapist in me [thinks that the] more we can connect with students and make them feel safe and heard and listened to, that will result in a lot of positive outcomes that last a really long time versus getting students to remember some piece of knowledge. People may not remember everything they learned in 2020, but they will remember the teacher they had if they feel grounded, safe, and seen.

Leave Options During COVID-19

By Paul Tapp, ATPE Managing Attorney

What leave options do you have if you are unable to work, either because you get sick or need to quarantine because of a possible exposure to COVID-19?

Returning to on-campus learning has increased concerns about leave options if a person either contracts COVID-19 or is required to quarantine because of a possible exposure to COVID-19. At the time of this writing, multiple leave options exist beyond the normal state and local sick leave days that may apply in individual situations—some paid, some unpaid. We’ll go through each option and explain how it would apply to a coronavirus-related absence.

State Personal Leave

Section 22.003 of the Texas Education Code requires that public school districts (not charter schools) provide five days of paid personal leave per year. The state-
required leave is characterized as either discretionary (voluntary) or non-discretionary (involuntary) leave. Districts can place restrictions on the use of voluntary leave, but generally if the absence is not under the control of the staff member, a district must allow the use of available personal leave. Available personal leave could be used for an illness or a required absence due to a required quarantine.

Local Sick Leave

Many districts provide additional sick leave in addition to the five state personal leave days, and the number is determined locally by the district’s board of trustees. Most districts treat local leave days in a way that would make them usable for a staff member who was ill or likely required to quarantine. Because these days are locally provided, each district determines the terms of eligibility.

Coronavirus-Specific Leave

The Families First Coronavirus Response Act (FFCRA) went into effect April 1 and remains in effect through December 31, 2020. The FFCRA provides two types of leave specific to COVID-19: expansion of FMLA and emergency paid sick leave.

Expansion of FMLA.
The Family and Medical Leave Act (FMLA) provides up to 12 weeks of leave under certain conditions when an employee or close family member is experiencing a “serious health condition.” Family and medical leave (FML) is unpaid, though available paid leave could be used concurrently. The FFCRA temporarily expanded the FMLA in both circumstances where it applies and makes those circumstances paid leave in some cases. The expansion provides that FML now applies if an employee has worked for a school district for at least 30 days and the employee is unable to work (or telework) due to a need for leave to care for a child under 18 years of age if the child’s school or childcare has been closed, or if the childcare provider is unavailable due to a public health emergency. In this limited circumstance, FML is paid leave under these conditions:

• The first 10 days of leave are unpaid, but the employee may elect to substitute paid vacation or personal, medical, or sick leave.
• After the first 10 days, the employer is entitled to pay at two-thirds of the employee’s regular rate of pay.
• Maximum compensation is $200 per day, with a maximum of $10,000 in total.

Emergency Paid Sick Leave (EPSL).
This provides paid leave to the extent an employee is unable to work (or telework) because:

1. The employee is subject to a federal, state, or local quarantine order.
2. The employee has been advised to self-quarantine by a health care provider.
3. The employee is experiencing COVID-19 symptoms and seeking medical diagnosis.
4. The employee is caring for an individual who is subject to (1) or (2).
5. The employee is caring for a child and the school or place of care of the child has been closed or the childcare provider “is unavailable due to COVID-19 precautions.”
6. The employee is experiencing another condition specified by the Secretary of Health and Human Services.

The amount of EPSL depends on whether the employee is a full-time or part-time employee:

• Full-time employees are eligible for up to 80 hours of EPSL.
• Part-time employees are eligible for the number of hours they would normally work on average over a two-week period.

The amount of compensation for EPSL is calculated based on the usual rate of pay and the number of hours the employee would otherwise be normally scheduled to work, except there is a maximum benefit of:

• $511/day and $5,110 in total for use under (1)–(3) above.
• $200/day and $2,000 aggregate for use under (4)–(6) above.
• For use under (4)–(6) above, the employee is compensated at two-thirds their normal rate of pay.

The EPSLA also provides:

• The employer may not require the employee to look for or find a replacement.
• Sick time under the EPSLA is available regardless of the amount of time the employee has been employed.
• The employer may not require an employee to use other paid leave provided by the employer before the employee uses EPSL.
• It is unlawful for an employer to retaliate or discriminate against an employee for use of EPSL. 

Because schools around the country transitioned to remote teaching so quickly in the spring, there have been few situations in which teachers and other staff have needed to request either type of leave under the FFCRA. As such, many specifics remain untested; for instance, whether a district requiring an educator to quarantine would be a “local quarantine order.” However, there is no question that a doctor’s written advice to quarantine would be sufficient. Employees should also be aware that if they are quarantining because they are experiencing COVID-like symptoms, they must seek a medical diagnosis to be eligible for EPSL.

Paid Administrative Leave During Required Quarantine

In addition to the leave options described above, many districts have adopted Policy DBB, which provides that the district may require a medical examination when the district receives information that an employee has a physical impairment that could be a health or safety threat to others. The policy may provide that the district may place the employee on paid administrative leave while waiting for the results of the examination. There are many factors that could contribute to a determination as to whether a district would place a particular employee on paid administrative leave, so it is not possible to guarantee that every district staff member required by a district to quarantine will be placed on paid administrative leave.

For additional information, visit ATPE’s COVID-19 FAQs and Resources page at atpe.org/coronavirus.
 

The legal information provided here is accurate as of the date of publication. It is provided for general purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Eligible ATPE members may contact the ATPE Member Legal Services Department.

Special Educators Grapple with Unique Challenges

By Michael Spurlin

The sudden shift to distance learning after schools closed their doors due to COVID-19 was jarring for both educators and students alike. However, for students enrolled in special education, the virus was particularly cruel: The remote learning challenges are amplified for those with special needs. After all, some of the most vital learning techniques for special education students are the very things most likely to spread the virus. Adapting and overcoming these challenges has required a great deal of creativity and perseverance on the part of special educators.

As an early childhood special education teacher in Leander ISD, Lindsay Higginbotham began grappling with these challenges as soon as schools moved to distance learning. Prior to the pandemic, she worked in a classroom of 3- to 5-year-olds with special needs, usually working one on one at a close distance.

“On a daily basis I am changing diapers, wiping noses, and helping facilitate play and learning with my students,” explains Higginbotham. “At times during learning, I need to use hand-over-hand guidance to help them complete various tasks and work on their fine motor skills.”

Susie Andrews is a special education teacher who works with students with visual impairments. In her role working with a special education co-op that serves four districts in South Texas, she is also frequently in close physical contact with students. Unfortunately, it was difficult to replicate these interactions through distance learning.

“Some of my students have multiple disabilities, so they need hands-on guidance to complete some of their activities,” Andrews says. “I currently have a student who is deaf-blind and needs a lot of guidance because he is learning Braille, how to type on a keyboard, and how to use a Braille display. Although we were able to complete many activities using Zoom, there were times he had difficulty hearing me. Teaching keyboarding and the Braille display require more hands-on guidance, which cannot be done through Zoom. I was unable to easily work with my students with multiple disabilities because many of them are non-verbal and have no vision, which makes it very hard to work with them online.”

Working with such young children added to the difficulty of online instruction for Higginbotham, too. Like many other children that age, her students could not access or navigate computer instruction without parental assistance—and stressed and overwhelmed parents did not always have the time to guide their children through lessons while juggling their own work demands and other children. On top of that, some of Higginbotham’s students have limited language skills due to disability. Additionally, the need for the social and community aspects of school are especially acute for special education students.

“A lot of my students have play and social skills goals that require them to physically interact with their peers during play times and classroom activities or engage in verbal exchanges with their peers,” Higginbotham says. “Thus, not being in the classroom environment makes it difficult to work on any social skills goals because they do not have peers at home. Additionally, I have students who have classroom routine goals that ask them to follow routines in the classroom and teacher directions that are difficult to assess when not in the classroom.”

Even when Higginbotham could translate an activity or lesson to the digital world, assessing a student’s progress, a task typically done in person in the classroom, presented its own challenges. “I feel that I was not able to fully assess or take accurate data on how my students were progressing on their IEP [individualized education program] goals as I relied on feedback from parents.”

The pandemic didn’t only affect these assessments of students already in special education programs. As Gidget Belinoski-Bailey, an educational diagnostician for Willis ISD explains, it altered the normal process for evaluating which students need these resources. She normally splits her time between two campuses as she communicates with parents and teachers, facilitates ARD meetings, and observes students in the classroom and individually. While much of this work could continue virtually, student evaluations came to a stop.

“In order to evaluate a student and adhere to standardization of testing instruments, I have to 100% be in the same room with students and closer than six feet,” Belinoski-Bailey explains. “If a student was in the process of a referral, then the referral had to be stopped until face-to-face testing could take place.”

Belinoski-Bailey is optimistic these types of evaluations can resume, but stringent safety protocols must be followed. “I will have to be closer than six feet and will need to use many different forms of PPE as well as sanitize tests after each student,” she says. “I have some concerns the testing environment might be intimidating to some students and may impact their test data negatively. I also believe that all of the precautions will add to the amount of time to complete an evaluation.”

While it is not yet known how long the COVID-19 pandemic will continue to affect Texas students and educators, obvious obstacles remain in the near future. As the fall semester nears, special education teachers are relieved to have the advantage of more time and experience.

“We found out school was going to close during spring break, and we never really had a lot of time to prepare,” Andrews recalls. “We now have more time to prepare. I believe this will make the education of my students with visual impairments better.”

Both Andrews and Higginbotham, if forced to continue distance learning, plan to develop lessons more suited to the new environment: creating video lessons, sending more learning materials to students, and creating more specific lesson plans to reflect the reality of working from home. Ultimately, to best serve students, the best thing everyone can do is remember to be patient and understanding.

“We are all in this together,” Belinoski-Bailey says. “Parents and teachers have to remember that each are doing the best they can do in a very unusual situation.”

Andrews agrees. “The more we learn, the more we can improve outcomes for our students. I truly believe that safety for students and staff is the most important thing right now, so virtual learning may be inevitable—and until we can work with our students safely [in person], we need to work at being the best at our jobs, no matter what that looks like, and keep learning new ways to help our students until this pandemic is over.”
 

Information accurate as of July 31, 2020. Visit atpe.org/coronavirus for the latest information.