Association of Texas Professional Educators
Association of Texas Professional Educators

FAQ and Resources

The ongoing response to COVID-19 continues to put school districts and individual educators in uncharted territory.

ATPE has developed this list of answers to frequently asked questions from Texas educators regarding COVID-19. We will continue to update this information as the environment evolves.

Readers should be aware that, as described below, many decisions are made locally. In addition, the situation can change rapidly. The information provided here is the best available at the time of posting and will be updated as circumstances warrant.

On Jan. 7, TEA updated its COVID-19 health and safety guidance for districts. While the changes were not significant, this is a good time to review the rules.

Staff Who Have COVID-19 or Are Close Contacts

Districts must exclude staff from attending school in person if they:

  • Are actively sick with COVID-19.
  • Have received a positive test result for COVID-19.

Staff may return:

  • If symptomatic, when at least five days have passed since symptom onset, and they are fever (100 degrees or higher) free for 24 hours without the use of fever-reducing medication, and other symptoms have improved.
  • If asymptomatic, at least five days after the day they tested positive.

Staff who have been in close contact with a COVID-19-positive individual do not need to stay at home if:

  • They are 18 or older and have received all recommended vaccine doses, including boosters and additional primary shots for some immunocompromised people.
  • They were confirmed COVID-19 positive within the last 90 days and have fully recovered.

For those not in one of these groups who have been in close contact with a COVID-19-positive individual, TEA recommends that the school system require they remain off campus during the stay-at-home period. TEA makes it clear, however, that this is a local decision. If staff do continue to work on campus, rapid testing must be performed periodically for five days post-exposure, with testing recommended on the fifth day.

Students Who Have COVID-19 or Are Close Contacts

Students must stay home if they:

  • Are actively sick with COVID-19.
  • Are suspected of being actively sick with COVID-19.
  • Have received a positive test result for COVID-19.

If the illness is discovered on campus, the district must immediately notify parents.

Schools can conduct COVID-19 rapid testing but only with prior written permission of parents.

Following CDC guidance, TEA guidance notes that after a COVID-19 close contact, students who are fully vaccinated—like staff—may not need to follow the stay-at-home protocol. If the school is made aware that a student is a close contact, the school must notify the student’s parents.

In areas with high or rising case rates, districts may choose to require quarantine for students who have close contact with someone in their household who has tested positive for COVID-19. Parents of students who have been in close contact with someone with COVID-19 may also choose to keep their child at home during the recommended stay-at-home period.

Based on updated CDC guidance, the stay-at-home period can end for students experiencing no symptoms on Day 10 after a close contact exposure if no subsequent COVID-19 testing is performed. Students can also end the stay-at-home period if they receive a negative result from a PCR acute infection test after the close contact exposure ends.

While a student is excluded from school, either because they are ill from COVID-19 or because they have been a close contact with someone who is ill from COVID-19, they can receive remote instruction consistent with TEA rules.

Masks

The new guidance reiterated that per Gov. Greg Abbott’s Executive Order, GA-38, districts cannot require students or staff to wear a mask due to COVID-19. Districts also must continue to allow individuals to wear a mask if they choose to do so.

Some districts have continued to implement mask mandates despite the governor’s executive order prohibiting them. Some local governmental entities and groups have taken legal action, arguing the governor does not have the legal authority to prohibit a mask requirement. Texas Attorney General Ken Paxton has also filed suit against several districts that have implemented mask mandates. Courts, including the Texas Supreme Court, have acted regarding individual cases and arguments. These judicial decisions have not ended the legal debate on the underlying legal question as to whether Abbott has the authority to prohibit local mask mandates.

It is still too early to know how the courts will ultimately rule on whether Abbott acted within his authority or if he exceeded this authority by prohibiting local mask mandates. The Texas Education Agency’s current guidance, restating guidance provided prior to Aug. 19, states that:

"Per GA-38, school systems cannot require students or staff to wear a mask. GA-38 addresses government-mandated face coverings in response to the COVID-19 pandemic. Other authority to require protective equipment, including masks, in an employment setting is not necessarily affected by GA-38."

Due to the ongoing litigation and our inability to know how the courts will ultimately rule, we must caution that if your district imposes a mandate, and you refuse to follow it, you could face negative employment action for insubordination. You may be able to claim a defense to any negative employment action based on the governor’s order. However, because we still don’t know how much legal weight the governor’s order has, as that question is still undecided, we don’t know how effective such a defense will be at this time.

Until we have a final decision from the courts and guidance from TEA, we are generally advising members that it is safest for their employment to abide by any local mask mandate. Any possible defense claiming adherence to the governor’s order could be rendered moot by the courts or the agency. We have not heard, so far, of any district attempting to terminate a staff member for failing to follow a local mask mandate, but that does remain a possibility.

If a local mask mandate is established, individuals who can show they have a health-related or religious reason not to wear a mask may have a legal right to an exception.

Stay tuned for updates as this important issue evolves.

TEA guidance requires that a student or staff member who tests positive for COVID-19 or is actively sick with COVID-19 symptoms refrain from attending school in person. The guidance no longer includes a requirement for a quarantine after a close-contact exposure to COVID-19. It is possible a local school district or charter school could determine locally that it wishes to continue requiring a quarantine after a close-contact exposure. If this happens, however, because the quarantine is not legally required, the district or charter might have to continue to pay the educator and not deduct the time away from the educator’s available leave if the educator is employed under contract.

Students who are not able to attend school due to a quarantine for either an active or suspected COVID-19 illness are eligible to receive remote instruction. A school district may allow a staff member who is under quarantine to work remotely, but there is no specific requirement that this be an option, and whether it is an option depends greatly on the staff member’s duties and how easily they can perform those duties remotely.

There is no specific COVID-19 leave provided under either federal or state law. However, some districts across the state have adopted policies providing some type of additional local leave related to either a COVID-19-related quarantine or illness. Educators should check their local leave policies to see if their own district or charter provides any type of COVID-19-specific leave.

The answer, at least for the present, continues to be no for the great majority of teachers and other public school employees. President Joe Biden’s federal executive order requiring many to be vaccinated led some teachers and other school district employees to question whether they can or will be required to get the COVID-19 vaccine to keep their jobs. However, as well-publicized, the U.S. Supreme Court vacated a large portion of the order, finding that the president did not have the authority to issue it.

An indirect way the federal government can practically require employers to take a desired action is through its ability to require the action as a condition of the receipt of federal funds. In other words, the employer is not directly required to follow the federal government’s wishes, but it will lose funding if it doesn’t. This can be a powerful incentive for an employer that is dependent on those funds. However, there has been no discussion so far regarding the federal government using this strategy.

There had been debate as to whether the mandate would apply to Texas public schools. The plan has a particular provision that applies to federally funded Head Start programs. The majority of the mandate, as noted above, is applied through Occupational Safety and Health Administration (OSHA) rules. Although OSHA rules apply to public education in 26 states, Texas is not one of them. Therefore, it does not appear the mandate as it stands now will apply to the vast majority of teachers and other public school district employees in Texas. Several court rulings also put the requirement on hold prior to the Supreme Court’s ruling. It seems likely, in light of the Supreme Court restricting the president’s authority to mandate vaccination through an executive order, that these temporary holds will become permanent.

On the state level, on Aug. 25, Gov. Greg Abbott signed COVID-19-related executive order, GA-39, which prohibits school districts or other governmental entities from requiring an employee to be vaccinated.

This order expands Abbott’s previous executive order, which applied to vaccines provided under an emergency authorization only. Abbott’s latest action removes the reference to vaccines provided under an emergency order and now simply states that the COVID-19 vaccine cannot be mandated by a school district.

There has also been debate as to whether the mandate would apply to Texas public schools. The plan has a particular provision that applies to federally funded Head Start programs. The majority of the mandate, as noted above, is applied through Occupational Safety and Health Administration (OSHA) rules. Although OSHA rules apply to public education in 26 states, Texas is not one of them. Therefore, it does not appear the mandate as it stands now will apply to the vast majority of teachers and other public school district employees in Texas.

On the state level, on August 25, Gov. Greg Abbott signed the latest COVID-19-related executive order, GA-39, which prohibits school districts or other governmental entities from requiring an employee to be vaccinated.

This order expands Abbott’s previous executive order, which applied to vaccines provided under an emergency authorization only. Abbott’s latest action removes the reference to vaccines provided under an emergency order and now simply states that the COVID-19 vaccine cannot be mandated by a school district.

While the foregoing describes the legal positions taken at the federal and state level specifically related to the COVID-19 pandemic, it is generally understood that an employer can require an employee to be vaccinated if the employer can show there is a “legitimate business necessity”—in other words, a very good reason—for the employer to require vaccinations. It is certainly possible a school district or charter school could determine vaccination is a business necessity because close contact is hard to avoid in public schools. It is unknown whether any districts will argue that Abbott has exceeded his authority regarding vaccinations as some have argued he has regarding mask mandates.

If a district were to decide this was the case, however, there would still be exceptions to the vaccination requirement. If an employee can show they either have a sincerely held religious objection to vaccination or have a legitimate health concern (such as an allergy), the employee could likely be exempted from the vaccination requirement.

There is some uncertainty as to whether Gov. Abbott’s latest executive order prohibits the question. Generally, an employer can ask about vaccination status so long as there is a legitimate business reason for doing so. Vaccination affects the likelihood of becoming ill and missing work, so this would be a legitimate business reason. But Executive Order GA-38 states:

State agencies and political subdivisions shall not adopt or enforce any order, ordinance, policy, regulation. rule, or similar measure that requires an individual to provide, as a condition of receiving any service or entering any place, documentation regarding the individual’s vaccination status for any COVID-19 vaccine administered under an emergency use authorization.

Again, it is unclear whether this applies to the employees of the “political subdivision” (a public school district is a “political subdivision”) or only “customers,” e.g., parents, students, and visitors.

In addition, there are two other caveats.

First, the district or anyone, like a nurse, acting on behalf of the district, would need to be very careful about asking any follow-up questions about why a person may not have gotten vaccinated. This could be considered an inquiry into a disability, which could violate the law.

Second, vaccination status is personal health information. Although an employer can often require an employee to share personal health information with the employer, the employer should be careful not to share the information with anyone who does not have a legitimate reason to receive it. This is not much different than your Social Security number. Your district can certainly require you to provide it, but the number must be kept confidential—for instance, your principal would not have a legitimate reason to know it.

If a staff member has a health condition that would make an illness such as COVID-19 particularly dangerous, such as a compromised respiratory system or diabetes, the district could be obligated to consider allowing remote work as a reasonable accommodation of a disability under the Americans with Disabilities Act (ADA). However, as students return to in-person instruction in 2021-22, it will be more difficult to argue that a remote assignment is reasonable.

The ADA is a very "reality-based" law. What is actually going on is very important as it relates to the ADA. One way this is highlighted is in whether a particular accommodation is reasonable or an undue burden. The ADA requires only that an employer provide "reasonable accommodations," and an employer is not required to provide an accommodation if it would be an "undue burden." Changing circumstances (what is actually happening) can make a once-reasonable accommodation no longer reasonable. By the same token, changing circumstances can make an accommodation an undue burden when it was not before. If that happens, an employer can determine that a remote assignment is not a reasonable accommodation—even if they agreed that it was last school year.

As school districts return to in-person instruction, they need more staff on campus to meet the needs of additional on-campus students. This means there are fewer remote positions available. The ADA is clear there must be a position available for it to be a reasonable accommodation and that for an accommodation to be reasonable, an employee must be able to perform all of the job’s essential functions. While students were learning remotely, there was no need to provide many things, such as in-person monitoring, that would normally be an essential function to many positions. But as students return to campus, these essential functions also return, making it impossible for many employees to perform all the job’s essential functions while continuing to work remotely.

So, from both angles—whether a remote position continues to be “reasonable” and whether continuing it becomes an “undue burden”—districts are likely legally able to phase out remote assignments as they return to in-person instruction. It should be noted, as stated above, that the ADA looks at what is actually happening, so a district should be able to explain in black-and-white terms why a particular accommodation is no longer reasonable.

 

The legal information provided on this website is for general purposes only and is accurate as of the date of publication, Jan. 19, 2022. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship.