General Questions

Q. What guidelines or requirements does my district have to follow to formulate its reopening plan?
A. All Utah public and charter schools must follow three sets of guidelines to formulate and implement reopening plans:

• Center for Disease Control (CDC) Guidelines;
• Utah Leads Together and Phased Guidelines (see coronavirus.utah.gov for the most recent version); and
• Utah State Board of Education (USBE) Planning Requirements and Recommendations for K-12 School Reopening.

Q. Is it possible these agencies (CDC; Governor’s Office; and USBE) will change their guidance?
A. Yes. Guidance is subject to change pursuant to updated public health guidance and changing public health conditions.

Q. What other recommendations does the UEA have for school district reopening plans?
A. The UEA supports the following guiding principles in planning for a return to in-person learning:

• Principle 1 – Health Expertise. All decisions to reopen schools must be based in scientific evidence and advice (including clear plans for PPE, social distancing and protocol for outbreaks. See the UEA Recommendations on School Reopening During COVID-19).
• Principle 2 – Educator Voice. Educators must be front and center by fully participating in decision-making and implementation.
• Principle 3 – Access to Protection and Training. Students and educators must have access to proper personal protective equipment and training on appropriate hygiene practices and protocols before returning to school. Utah schools, which are already underfunded, should not be faced with the decision of how to pay for this equipment and training.
• Principle 4 – Leading with Equity. The pandemic was not experienced equally by all communities and populations, particularly in rural areas and communities of color. Funding and resources must be allocated to help close opportunity gaps exacerbated by the disparate impacts of school closures.

Q. Must all schools return to in-person instruction in the fall?
A. No. All agencies and the UEA want in-classroom instruction where safe, reasonable, and possible. But local COVID-19 rolling 7-day average positive cases and percent positive cases will likely determine what school districts may return to in-person instruction for fall 2020.

Q. Will schools have to complete 990 instructional hours and a minimum of 180 school days in 2020-21?
A. The State Board of Education revised rule R277-419 to waive the 990 hour requirement for the 2020-21 school year if a district submits a reopening plan that ensures “continuity of teaching and learning by providing high quality instruction that includes blended learning and formative assessment strategies.” The Board will continue to require a minimum of 180 school days.

Q. May a school use a blend of in-person and remote instruction?
A. Yes. The USBE plan requires districts to have plans for high-risk students and employees.

Q. Do school districts have guidance in the event the virus resurges?
A. Yes. USBE requires districts to make a plan for temporary closures, if necessary.

Q. What is the UEA doing to ensure a safe return to school for its members?
A. As statewide guidelines were being developed, the UEA pressured safety measures and funding for school reopening plans, first with the legislature, then with State Board of Education and the Governor. Some school district reopening plans, particularly those developed in collaboration with educators, are earning acceptance in the way they protect student and teacher health. Many others fall woefully short. The UEA is currently providing local leaders with information to influence school district plans in a way that protects educators and students. In school districts where the local association determines the district plan is not sufficient, the UEA stands ready to support them in whatever actions they deem necessary.

Q. What else is the association doing to ensure a safe return to school?
A. In addition to the statewide association, UEA members also belong to the national NEA and a local (school district) association. At the local level, professional full-time staff in regional UniServ offices are assisting teacher leaders in local education associations as they work with local school districts on individual school district plans. At the national level, the NEA was instrumental in obtaining needed school funding through the CARES Act. NEA continues to advocate for federal funding and to provide other resources supporting teachers during this crisis. This national, state and local professional advocacy is possible because of the collective strength of membership. If you are a licensed Utah educator and are not currently a member of your professional association, learn more about membership here. 

Q. What are some additional resources for more information?
A. State and national COVID-19 resources include the following:

• Utah State Board of Education: Schools.utah.gov/coronavirus
• State of Utah: Coronavirus.utah.gov
• National Education Association: NEA.org/coronavirus (includes CDC links, factsheets and resources for talking to students about Coronavirus)
• US Department of Education: ed.gov/coronavirus

Employee-Specific Issues

Q. If I am unable or do not feel comfortable returning to school, what should I do?
A. In addition to this FAQ, the UEA has developed a School Building Reopening and Educator Rights flowchart that outlines options and recommended actions.

Q. What can I say about COVID-19 and school reopening plans?
A. If you are a public school employee and choose to speak publicly about your concerns regarding school reopening, it is recommended you keep the following in mind in order to preserve your First Amendment rights:

• If you are at a school board meeting or any gathering at YOUR school, you are likely not able to distinguish yourself as a patron and will be deemed an employee with limited First Amendment rights;
• If you are speaking at a school in your neighborhood but not a school where you are employed, distinguish yourself as a patron, neighbor, parent, community member;
• Avoid addressing the proposed plan specifically and focus on issues related to COVID-19 and health and safety concerns;
• Avoid naming any administrators, supervisors, employees or school board members;
• Avoid assigning blame anywhere;
• Be professional always; be courteous; exercise grace and gratitude;
• Acknowledge the difficulty the local board, administrators, supervisors face in trying to meet the needs of the parents, students and employees
• If you have any questions about what you want to say, please consult with your local UniServ Director before speaking.

Employee Questions and Surveys

Q. Can the school district (“employer”) ask questions about issues that may impact an employee’s ability to work next school year?
A. Yes. An employer may ask non-disability related questions aimed at addressing potential staffing issues in the event of a pandemic. These questions may inquire about access to childcare; access to transportation for work; lack of access to services needed for dependents in the household and whether the employee or someone in the household is at higher risk for contracting pandemic influenza. The Equal Employment Opportunity Commission advises the employer to ask about these issues in one question and ask the employee to answer “yes” or “no” without asking the employee to identify which issues apply.

Q. Does the survey need to be anonymous?
A. No. An employer is not required to collect answers anonymously.

Q. May an employer specifically ask an employee whether they have a medical condition that makes them susceptible to the virus?
A. No. An employer cannot explicitly ask an employee who is not displaying COVID-19 symptoms whether they have a medical condition that makes them more susceptible to the virus. HOWEVER, an employer can ask that question in a bigger survey so long as it is not asking the employee to give a specific answer regarding a medical condition.

Q. May an employer ask about the type of symptoms an employee is experiencing?
A. Yes. An employer may ask if an employee is experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. Any information that an employer collects about an employee’s symptoms needs to be maintained in a confidential medical file in compliance with the Americans with Disabilities Act (ADA).

Q. May an employer ask about potential exposure to COVID-19 if that employee has traveled?
A. Yes. If the CDC or state or local health departments indicate that individuals who traveled to certain locations should remain at home for a certain period of time, an employer may ask if employees have traveled to such locations. It does not matter if the travel was for personal reasons.

Q. May an employer impose conditions for an employee to return to work if they have traveled to a high-risk location as determined by the CDC, state or local health department?
A. Yes. Employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons. There is some federally funded leave to allow for this (FFCRA – talk to your UniServ director) and to allow the employee to be paid for 10 work days. Districts are also encouraged to be generous with amendments to sick leave policies to support these situations.

In-School Situations

Q. If a school employee tests positive for COVID-19, is their sick leave covered, paid?
A. Partially. As part of the Families First Coronavirus Response Act (FFCRA), until December 31, 2020, if the school employee is sick with COVID and she is employed full time, the employee is awarded 80 hours paid sick leave that is above and beyond any sick leave provided by the employer. The leave is paid at the regular rate of pay but capped at $511 per day and $5,110 in the aggregate. If the employee is unable to work because of a “bona fide need to care for an individual subject to quarantine” (broader than family member or household member) she is eligible for 80 hours paid sick leave at 2/3 pay up to $200 per day and $2,000 in the aggregate. The employee may not be forced to use the employer benefit first. If the employee is part time, the rate of pay remains the same but the hours are to reflect the hours she normally works.

Q. What happens if a student, teacher or employee tests positive for COVID-19?
A. On July 30, 2020, the Utah Department of Health released a COVID-19 School Manual. According to this manual, if a student, teacher or employee tests positive for COVID-19, he or she should isolate right away. This means the person needs to stay at home and away from other people as much as possible. The student, teacher, or employee should not go to school or work. People who have been in close contact with someone who tests positive for COVID-19 are at an increased risk of getting infected and infecting others. Close contact means someone was closer than 6 feet or 2 meters (about 2 arm lengths) to a person who has COVID-19 for 15 minutes or longer. Contact tracing is how public health workers find the close contacts of someone who has COVID-19. View the COVID-19 School Manual for more details.

Q. What happens if a student, teacher or employee is exposed to someone with COVID-19?
A. According to the Utah Department of Health released a COVID-19 School Manual, “if a student, teacher, or employee was exposed to a person who tested positive for COVID-19, the health department and the school will work together on contact tracing. Contact tracing is how public health workers find the close contacts of someone who has COVID-19.” See more about contact tracing (pg. 35).

Q. Must a teacher or school employee quarantine if they are exposed to someone with COVID-19?
A. The Utah Department of Health COVID-19 School Manual originally called for a “modified quarantine for schools” requiring exposed school employees to continue working if they were unable to find adequate substitutes. However, due to concerns expressed by the UEA, the Utah State Board of Education and the Governor’s office, this guidance was changed to read as follows: “In the event of a confirmed case in a school setting:
A. Students, teachers, and staff who were wearing a mask and were able to physical distance are not considered exposed.
B. Students, teachers, and staff who were not able to physical distance will be considered exposed and will be required to be quarantined.

• You were within 6 feet of someone who has COVID-19 for at least 15 minutes (even if masked)
• You provided care at home to someone who is sick with COVID-19
• You had direct physical contact with the person (touched, hugged, or kissed them)
• You shared eating or drinking utensils
• They sneezed, coughed, or somehow got respiratory droplets on you.

Q. If a school employee must quarantine due to virus exposure, is their sick leave covered, paid?
A. If the teacher is required to quarantine, she is eligible for FFCRA paid leave. However, if she is able to work remotely during the quarantine and then she does not need to use any leave; she can be paid to work remotely. Unfortunately, the FFCRA applies only one time, as such, districts and employers have been urged to create flexible sick leave policies above and beyond what is normally available and to encourage students and employees not to come to work when sick so as to limit the transmission of the virus.

Q. How are teachers and parents notified if there is an outbreak in a school?
A. Either the district or the local health department will notify persons who need to know if there is an outbreak. The confidentiality of the student or employee must be protected. The district reopen plans are required to address this topic.

Q. Where will school districts find substitute teachers willing to work in a classroom full of exposed, possibly infected students?
A. Hopefully, the Utah legislature and the US Congress will provide more funding to assist with these pandemic needs.

Q. May an employer require an employee to leave the premises if they are displaying COVID-19 type symptoms?
A. Yes. The CDC states that employees who become ill at work with symptoms consistent with COVID-19 symptoms should leave the workplace.

Q. May an employer require employees to submit to a temperature screening?
A. Yes. In times of a pandemic, an employer may require employees to submit to a temperature screening. Temperature screenings results are medical information and subject to ADA confidentiality requirements.

Q. May the employer require employees to engage in certain routines or practices aimed at infection control such as handwashing, coughing and sneezing etiquette, tissue disposal, utensil disposal, etc.?
A. Yes. An employer may require employees to engage in hygiene routines and practices for the purpose of infection control.

Q. Can the employer require employees to wear a face covering?
A. Yes. During a pandemic, an employer may require an employee to wear personal protective equipment aimed at limiting the spread of a virus such as a face covering. Currently masks are required in all public schools (the exemptions are not intended to be exceptions, just to allow for other PPE in lieu of a mask). The limited exception is for three years old and younger.

Q. Can an employer discipline an employee who refuses to wear a face covering?
A. Probably, yes. Absent a prior demonstration that an employee has a medical condition that prevents them from wearing a face covering safely and requires a reasonable accommodation, an employer may take an employment action if the employee refuses to wear a covering; it is recommended it be a progressive disciplinary action such as warning, followed by more serious discipline. 

Q. What should be done if a supervisor tells employees they are not allowed to wear a face covering?
A. File a complaint with Human Resources and continue to wear the face covering. Masks are required by state mandate and pursuant to guidance issued by the Governor’s Office. Therefore, a supervisor should not prevent the employee from wearing one. If there is a specific IEP or 504 plan requiring the student see the employee’s face, other PPE should be provided by the employer to the employee to fulfill the reasonable accommodation.

>>See additional face covering FAQs provided by the Utah Department of Health

Q. May an employer send a general message encouraging employees to inform of the need for a reasonable job accommodation if an employee has a medical condition that puts them at high risk for contracting COVID-19?
A. Yes, so long as the employer is not making these inquiries on an individual basis (this is why, in some instances, employees are advised to respond with a request to commence the interactive process). Requests for reasonable job accommodations are done on an individual basis. While there is no time limitation on when an employee can ask for a reasonable job accommodation, presenting the request in advance of the school year increases the likelihood the request will be properly assessed before the school year begins.

Q. Can the employer require all employees to get the COVID-19 vaccine when it becomes available?
A. No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on many reasons (similar to any other vaccine and including an ADA disability). This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Also, under Title VII of the Civil Rights Act of 1964, if an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents her or him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII. However, the employee who exercises a lawful exemption could be prevented from entering the building and may be denied pay for the relevant period of time that only vaccinated persons can be in the building.

Medical Concerns, Accommodations and Leave

Q. Do employees with a medical condition that increases their chances for catching COVID-19 have the right to receive a job modification?
A. Hopefully. Many individuals with medical conditions that never impacted their ability to work in schools now find that doing so poses a significant health risk. The Americans with Disabilities Act (ADA), requires employers to provide reasonable accommodations to qualified individuals with a disability unless doing so would provide an undue hardship. A reasonable accommodation is a modification to the job or work environment that enables an individual with a disability to perform the essential functions of the job. An employee with a medical condition which they believe requires a reasonable accommodation may contact their employer and make a request. Please consult with your UniServ Director.

Q. How do I know if my employer is subject to the ADA?
A. All employers, including state and local government employers with 15 or more employees, are subject to the ADA. If your district has less than 15 employees, please contact your UniServ director.

Q. What does it mean to be disabled under the ADA?
A. It means the individual has a substantial impairment, is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning, reading or working. Such impairments may be permanent or temporary. To be covered by the ADA, an employee must have a qualifying disability and be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation.

Q. What happens after an employee requests a reasonable accommodation under the ADA?
A. Under the ADA, the employer must consider the request and engage in an interactive process with the employee to try and find a suitable accommodation. An employee making a request for a reasonable accommodation is encouraged to notify their UniServ director and seek any assistance necessary navigating the process with the employer. Requests for accommodations are assessed on a case-by-case basis. Any denial should include a reason for the denial and the employee with the UniServ director may continue to engage in the interactive process to find a suitable, reasonable accommodation.

Q. What kind of information may an employer request to support a request for a reasonable accommodation?
A. While the ADA does not require an employee to present medical information at the time the employee requests the accommodation, it allows the employer to ask for medical documentation to support the request. The information requested should be relevant to
determining whether the employee has a qualifying disability and limited to the actual disability. An employee’s medical provider should be able to assist the employee in providing that information along with possible accommodation options.

Q. If the employee demonstrates a need for a reasonable accommodation under the ADA, does the employee have a right to the specific accommodation requested?
A. Maybe. Employers can, but are not required to, provide the specifically requested accommodation. Engaging in the interactive process may identify alternative accommodations that may be appropriate for the situation. If the interactive process determines that providing an accommodation places an undue hardship upon the employer, the accommodation is not required. An employee is encouraged to notify their UniServ director when making the initial request, and most certainly, if the employer denied a request for a reasonable accommodation. An employee who is denied an accommodation should ask the employer for an explanation as to the basis for the denial.

Q. Individuals over 65 are considered to be at higher risk for contracting COVID-19. Can an employee’s age alone be enough to qualify them for an accommodation under the ADA?
A. Probably not. Age, as a sole factor, does not constitute a disability. An employer is not required to provide an employee an accommodation because they are older but it may do so voluntarily. If you are in this category of “COVID-19 vulnerable” please reach out to your UniServ director for assistance in requesting accommodations.

Q. Does pregnancy qualify as having a disability?
A. Pregnancy is not a disability. However, having a pregnancy-related medical condition might qualify an employee as having a disability under the ADA. The Pregnancy Discrimination Act requires that employees affected by childbirth, pregnancy or a related medical condition be treated the same as other employees with similar limitations.
That said, Utah’s Anti-Discrimination Act can provide employees access to a reasonable accommodation even if their pregnancy condition does not constitute a disability under the ADA. Federal and Utah law provide an expansive list of possible accommodations for pregnant employees. Similar to the ADA, Utah law requires the employer to engage in a meaningful conversation with the employee to determine if there is a reasonable accommodation. 

Q. May an employee qualify for a reasonable accommodation on the basis that someone in their household has a medical condition that deems them at high risk for contracting COVID-19?
A. Unfortunately, no. The ADA does not require an employer to grant an accommodation for the purpose of protecting someone in an employee’s household or family. The ADA does protect employees from being treated differently or harassed because of their association with someone who is disabled. Nevertheless, if you are in this situation, please contact your UniServ director for assistance in seeking an accommodation for this situation.

Q. What are an employee’s potential leave options if they cannot demonstrate a legal basis for a job accommodation?
A. Under the Families First Coronavirus Response Act (FFCRA), through December 31, 2020, employees may be eligible for paid emergency sick leave. This leave is available for use in the event an employee cannot work due to a number of COVID-19-related reasons, including themselves or a family member experiencing virus-related symptoms or is under quarantine. The emergency paid leave is also available for use if the employee’s daycare or school is closed. Please contact your UniServ director to discuss potential leave options and for additional information related to FFCRA leave.

Q. What leave options are available for employees who test positive for COVID-19?
A. Under the Families First Coronavirus Response Act (FFCRA), through December 31, 2020, employees may be eligible for paid emergency sick leave. This leave is available for use in the event that an employee cannot work due to a number of COVID-19-related reasons, including themselves or a family member experiencing virus-related symptoms or is under quarantine. Other leave options vary depending on school district policies (e.g. sick leave, personal leave, FMLA, short term disability, leave without pay, vacation leave, etc.). Contact your UniServ director to determine which options may be available in your situation.

Working Condition Issues

Q. Are waivers that ask an employee to waive liability against an employer for catching COVID-19 legally enforceable?
A. Likely not. If you are asked to execute a waiver, it is not likely legally enforceable. However, the Utah Legislature in special session granted Utah employers immunity for legal liability for COVID-19 except for exceptional circumstances. In addition, without additional action by the Utah Legislature, it is highly unlikely that a COVID-19 illness will be covered by Workers Compensation. You have a right to ask your employer whether or not the employer health insurance will cover COVID-19 related illnesses and treatment.

Q. What should an employee do if their employer presents them with a waiver asking them to waive any claims against the employer if they contract COVID-19?
A. This is unlikely to happen in Utah. However, if it does happen, do NOT sign the document until you can speak with your UniServ director. 

Q. Is my employer required to keep six feet of distance between everyone at all times?
A. Unfortunately, no. The six feet/two meters distance is a guideline and not a requirement. Recent data has demonstrated that indoors, for a prolonged period, social distance should be greater than six feet. Anytime, you and an individual, can create greater distance indoors, even when masked, you should do so.

Q. Are face coverings/masks required in schools?
A. Yes. On July 17, The Utah Department of Health and the Governor issued a State Public Health Order requiring the wearing of face coverings in all schools. The order is currently effective through December 31, 2020. The Centers for Disease Control and Prevention and the Utah Department of Health recommend the use of face masks or other face coverings to mitigate the transmission of COVID-19 in addition to physical distancing of a minimum of six feet when possible and regular hand washing.

Q. Does the mask requirement apply to all students and adults in schools?
A. Yes, the face covering order applies to all individuals while in any public or private school facility, including K-12 district, charter, and private schools, career and technical education centers and gyms. 

Q. When is it appropriate for a student or employee to NOT wear a face covering?
A. According to direction provided by the Utah State Board of Education, the mask order does not apply to:

• An individual outdoors that maintains a physical distance of at least six feet from another individual;
• An individual who is eating or drinking and while maintaining a physical distance of at least six feet from another person;
• Children younger than three years of age;
• A child who cannot have a face mask placed safely on their face;
• An individual with a medical condition, mental health condition, or disability that prevents the wearing a face covering;
• An individual who is deaf or hard of hearing or communicating with an individual who is deaf or hard of hearing, where the ability to see the mouth is essential for communication, in which case a face shield or alternative protection should be used;
• An individual who has an Individualized Education Program (IEP) or Section 504 accommodation that would necessitate exempting the individual from wearing a face covering;
• An individual who is receiving or providing a service involving the nose or face for which temporary removal of the face covering is necessary (i.e. speech therapy); or
• An individual participating in a school sponsored activity so long as the individual complies with the Phased Guidelines for the General Public and Businesses to Maximize Public Health and Economic Reactivation pertaining to K-12 school activities. Schools may also reference guidelines provided by the Utah High School Activities Association.

Q. What can an employee do if a student is refusing to wear a face covering or engage in appropriate social distancing?
A. Educational institutions should be updating their policies to address the expectations for students to engage in appropriate practices needed to reduce the spread of COVID-19. Local education associations are encouraged to talk with the employer about what is the appropriate protocol if a student refuses or fails to follow that policy and will not follow direction from an educator or education support personnel. At the very least, protect yourself by maintaining a greater distance from a defiant student. 

Q. Our school is planning to use video conferencing or other virtual learning software apps to hold classes virtually on remote learning days. Can a school or district use such apps under FERPA?
A. Yes. Under the school official exception to FERPA’s general consent requirement,
educational agencies and institutions may disclose students’ education records, or personally identifying information in those records, to a provider of such a service or application as long as the provider meets certain conditions. This is why it is important that staff only utilize services or applications that are approved through the employer. 

Q. Will an educator inadvertently be violating FERPA if a non-student observes virtual classroom interaction/instruction?
A. Especially in the case for younger students, caregivers are likely going to be nearby the student. Assuming that during the virtual lesson, personally identifying information from student education records is not disclosed, FERPA would not prohibit a non-student from observing the lesson. Any FERPA concerns should be brought up to the district and addressed in training before the school year commences.