On Aug. 1, 2022, TEA updated its COVID-19 public health guidance for districts.

Staff Who Have COVID-19 or Are Close Contacts

The updated rules no longer offer guidance for excluding staff members who are sick or who test positive for COVID-19. Instead, TEA leaves those decisions to the local school district, which may rely on local health authorities.

Students Who Have COVID-19 or Are Close Contacts

Following the Department of State Health Services guidance, students who have or are suspected of having COVID-19 must be excluded from in-person attendance, and their parents must be notified.

Exclusion shall continue until readmission criteria are met:

• If a student was symptomatic, at least five days must have passed since symptom onset, and the student must be fever-free, and other symptoms must have improved.
• If a student tested positive but was asymptomatic, the student must stay at home at least five days after the day they were tested.

The guidance further states parents are not to send symptomatic children or children who have tested positive to school until readmission criteria are met.

Masks

The new guidance reiterates 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 must continue to allow individuals to wear a mask if they choose to do so.

Staff notification of close contact or positive cases is not required by state law or TEA guidance. Therefore, it is up to the local school district, pending any applicable confidentiality requirements.

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. Additionally, if your district asks you to stay home as a precaution and you are not sick in any way, it is reasonable to ask for them to pay you for that time since a precautionary quarantine is no longer required. Educators should check their local leave policies to see if their own district or charter provides any type of COVID-19-specific leave.

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 those duties can be performed remotely.

Because paid COVID-19 leave is no longer required by state or federal law, any paid leave would be a district-created benefit. The general rule is that school districts may attach reasonable conditions to access such benefits.

Abbott’s Executive Orders GA-38 and GA-39 prohibit state agencies and political subdivisions from requiring individuals to provide documentation of an individual’s vaccination status in order to “receive any service.” However, because offering additional paid leave is not a “service,” the practice is likely allowable.

There is some uncertainty as to whether Abbott’s executive orders prohibit 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. However, both Executive Order GA-38 and GA-39 state:

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, such as 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, with fewer remote positions available, it will be more difficult to argue that such an 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 in prior school years.

With school districts mostly operating via 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 with the return to in-person instruction, 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 since they have returned 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.